Law Commons^™

Marriage As A Trade: Bridging The Private/Private Distinction, Martha M. Ertman

Martha M. Ertman

No abstract provided.

Taxing Civil Rights Gains, Anthony C. Infanti

Michigan Journal of Gender & Law

This Article is divided into four parts. In Part I, the nature of the levy that the DOMAs impose on same-sex couples is explained. In Part II, how this levy can be classified as a "tax" is explained. In Part III, the federal- and state-level ramifications of classifying the levy that the DOMAs impose as a "tax" are discussed. Finally, brief concluding remarks are provided that discuss how this Article might pave the way for making similar arguments with respect to other nontraditional families and, concomitantly, how it demonstrates the transformative potential of same-sex marriage.

The Meaning Of Marriage: Immigration Rules And Their Implications For Same-Sex Spouses In A World Without Doma, Scott Titshaw

Scott Titshaw

An estimated 35,000 U.S. Citizens are living in our country with same-sex foreign partners, but with no right to stay here together on the basis of their relationship. Many are faced with a choice between their partners and the country they love. This is true, even if the couple is legally married in one of the growing number of states and foreign countries that recognize same-sex marriage. The Defense of Marriage Act (DOMA), which defines “marriage” under all federal law as an exclusively heterosexual institution, now stands squarely in their way. Reform options that would help these couples to stay …

Sorry Ma'am, Your Baby Is An Alien: Outdated Immigration Rules And Assisted Reproductive Technology, Scott Titshaw

Scott Titshaw

The growing use of assisted reproductive technology (ART) and legal recognition of same-sex relationships are raising questions regarding the recognition of parent-child relationships. State and foreign family law have been wrestling with these issues for decades, but U.S. immigration law is lagging far behind. So far, guidance exists on only one ART related issue under the Immigration and Nationality Act (INA): whether a U.S. citizen transmits her citizenship to a child born abroad. Unfortunately, that guidance is contradictory. The U.S. Department of State (DOS) requires genetic kinship for citizenship transmission. The Ninth Circuit Court of Appeals focuses on the parents’ …

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.

Civil Rites: The Gay Marriage Controversy In Historical Perspective, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This short essay, written for a volume that celebrates and reflects on Lawrence M. Friedman’s work in legal history and legal culture, explores the modern controversy about same-sex marriage through a historical lens. The legalization of same-sex marriage by five states, and the express condemnation of it by more than forty others, has reintroduced the age-old problem of non-uniform marriage laws and the complicated interactions that follow. This modern story - a challenge to traditional marriage, a divisive moral debate, and the emergence of strong oppositional forces that are stuck, at least temporarily, but perhaps indefinitely, in a kind of …

Taxing Civil Rights Gains, Anthony C. Infanti

Articles

In this article, I take a novel approach to the question of what constitutes a "tax." I argue that the unique burdens placed on same-sex couples by the federal and state "defense of marriage" acts (the DOMAs) constitute a tax on gay and lesbian families.

Classifying the DOMAs as a "tax" has important substantive and rhetorical consequences. As a tax, the DOMAs are subject to the same constitutional restrictions as other taxes. This opens them to challenge under the federal constitution's direct tax clauses and the uniformity clauses present in many state constitutions. Where such constitutional challenges are unavailable or …

Doma And The Happy Family: A Lesson In Irony, Rhonda Wasserman

Articles

In enacting the Defense of Marriage Act, Congress chose to protect heterosexual marriage because of its “deep and abiding interest in encouraging responsible procreation and child-rearing. Simply put, government has an interest in marriage because it has an interest in children.” Ironically, DOMA may harm, rather than protect, the interests of some children – i.e., the children of gay and lesbian couples.

Both state and federal law reflect the belief that children are better off being raised by two parents in an intact family. This belief is reflected in the marital presumption of paternity, which presumes that a married woman’s …

Regulating Polygamy: Intimacy, Default Rules, And Bargaining For Equality, Adrienne D. Davis

Scholarship@WashULaw

Most legal scholarship about polygamy has approached it in one of two ways. Some have framed it as a question of how far constitutional protection for religious freedom and privacy rights extends, including what we might think of as “intimacy liberty,” particularly in light of Lawrence v. Texas. Others have debated decriminalization, based on the contested effects of polygamy on matters ranging from women’s subordination to fraudulent behavior to democracy. This Essay shifts attention from the constitutionality and decriminalization debates to a new set of questions: whether and how polygamy might be effectively recognized and regulated, consistent with contemporary social …

Sex In And Out Of Intimacy, Laura A. Rosenbury, Jennifer E. Rothman

UF Law Faculty Publications

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 …

Beyond The Binary: What Can Feminists Learn From Intersex And Transgender Jurisprudence?, Marybeth Herald

Marybeth Herald

This panel discussion focuses on recent developments in the intersex and transsexual communities. Recently, both movements have undergone profound changes and each has provided new and unique theoretical and practical perspectives that can potentially benefit other social justice groups. This dialogue describes these developments. It also emphasizes the importance of feminist, lesbian, gay, bisexual, transsexual and intersex activists becoming aware of the goals that they share and areas where their interests may diverge. As each of these movements develops their legal strategies, they need to be conscious of the potentially positive and negative ramifications that their approaches may have on …