Law Commons^™

Where The Rainbow Ends: The Hidden Humanitarian Crisis For Members Of The Lgbtqia+ Community In International Business, John R. Krendel

Senior Honors Projects, 2020-current

Before pursuing an international career, members of the LGBTQIA+ community must be aware of the hardship that may be exacerbated by living and working abroad. This study addresses the trends in laws, including employment and anti-discrimination laws, that provide and restrict certain rights of members of the LGBTQIA+ community in eight countries. These nations, both progressive and discriminatory, include the United States, England, Switzerland, Germany, Taiwan, China, the Philippines and Kazakhstan. Eight LGBTQIA+ business professionals spoke on their experiences living and working in each of these countries and provided advice to members of the community wishing to pursue an international …

Zarda And Sexual Orientation Expression: A New High For Title Vii Interpretation, Nico Ramos

Catholic University Law Review

Under current federal law, a majority of jurisdictions decline to extend Title VII protections based on sexual orientation; however, a growing number of circuits have reversed precedent and held that Title VII prohibits discrimination sexual orientation discrimination. The Second Circuit’s en banc decision in Zarda v. Altitude Express reached the conclusion that sexual orientation discrimination is as a cognizable claim under Title VII because in order to discriminate against a person sexual orientation, you naturally first have to take their gender into account. The Supreme Court granted certiorari and has now heard oral arguments.

Part I of this note provides …

Intimate Liberties And Antidiscrimination Law, Deborah A. Widiss

Articles by Maurer Faculty

In assessing laws that regulate marriage, procreation, and sexual intimacy, the Supreme Court has recognized a “synergy” between guaranteeing personal liberties and advancing equality. Courts interpreting the antidiscrimination laws that govern the private sector, however, often draw artificial and untenable lines between “conduct” and “status” to preclude protections for individuals or couples who face censure because of their intimate choices. This Article exposes how these arguments have been used to justify not only discrimination against the lesbian and gay community, but also discrimination against heterosexual couples who engage in non-marital intimacy or non-marital childrearing.

During the 1980s and 1990s, several …

A Free Speech Response To The Gay Rights/Religious Liberty Conflict, Andrew Koppelman

Northwestern University Law Review

The most sensible reconciliation of the tension between religious liberty and public accommodations law, in the recent cases involving merchants with religious objections to same-sex marriage, would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others. Even if such businesses have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. This solution may, however, be forbidden by the law of hostile environment harassment. That raises a severe free …

National Gay Task Force V. Board Of Education Of Oklahoma City, Susan Fitch

Akron Law Review

The National Gay Task Force (NGTF) looked to the courts for relief in challenging an Oklahoma statute which attempted to regulate teachers' speech. National Gay Task Force v. Board of Education of Oklahoma City marks the first time since the beginning of the gay rights movement that the United States Supreme Court has granted certiorari to a case which had homosexuality as its central issue. The result in National Gay Task Force has left both the challengers and the defenders of the Oklahoma statute claiming victory.

The NGTF claims that although the portion of the statute which prohibits teachers from …

Scrutiny Of The Venire, Scrutiny From The Bench: Smithkline Beecham Corp. V. Abbott Laboratories And The Application Of Heightened Scrutiny To Sexual Orientation Classifications, Parker Williams

Catholic University Law Review

In SmithKline Beecham Corp. v. Abbott Laboratories, the Ninth Circuit Court of Appeals applied heightened scrutiny to a sexual orientation classification. Through SmithKline, the Ninth Circuit became one of the first federal circuit courts to do so explicitly; and by unequivocally applying a more exacting standard than rational basis, it furthered the framework developed in cases such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. This Note asserts that SmithKline is a significant victory for the advancement of LGBT rights, as evidenced by its use to strike down several same-sex marriage bans …

A Word Of Warning From A Woman: Arbitrary, Categorical, And Hidden Religious Exemptions Threaten Lgbt Rights, Leslie C. Griffin

Scholarly Works

Religious exemptions have already undermined women’s rights. Now exemptions threaten gays and lesbians. The Constitution protected women’s equality and liberty until religious exemptions eroded them. Today, as gays and lesbians stand on the threshold of marriage equality, religious exemptions threaten to diminish their hard-earned constitutional right. For this reason, I argue it is past time to reject the religious exemption theory of religious liberty, which privileges religion over civil and constitutional rights, in favor of neutral laws that govern all. Religious exemptions pervade American law in numerous ways that are harmful to civil rights.

In this essay, I identify three …

Glorious Precedents: When Gay Marriage Was Radical, Michael Boucai

Journal Articles

In the years immediately following the Stonewall riots of June 1969, a period when “gay liberation” rather than “gay rights” described the ambitions of a movement, three marriage cases made their way to and beyond trial: Baker v. Nelson in Minnesota, Jones v. Hallahan in Kentucky, and Singer v. Hara in Washington State. This article offers a detailed account of that early trilogy. Drawing on extensive archival research and on interviews with key players in each case, it shows that, contrary to received wisdom, Stonewall-era marriage litigation was faithful to gay liberation’s radical aspirations. The Baker, Jones, and Singer lawsuits …

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 …

The Logic And Experience Of Law: Lawrence V. Texas And The Politics Of Privacy, Danaya C. Wright

Danaya C. Wright

The U.S. Supreme Court's June 2003 decision in Lawrence v. Texas may prove to be one of the most important civil rights cases of the twenty-first century. It may do for gay and lesbian people what Brown v. Board of Education did for African-Americans and Roe v. Wade did for women. While I certainly hope so, my enthusiasm is tempered by the fact that discrimination on the basis of race or gender has not disappeared. Will Lawrence signal meaningful change, or will its revolutionary possibilities be stifled by endless cycles of excuse and redefinition? The case is important, but I …

Querying Lawrence, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

In 2003, the Supreme Court in the landmark decision Lawrence v. Texas found a Texas law, banning homosexual, but not heterosexual, sodomy to be unconstitutional. Thus, Lawrence ended the Bowers era in which morality was deemed to be a justification for discrimination against gays and lesbians. While the decision did bring to United States Constitutional analysis the radical idea that gays and lesbians are people too, it stopped short of addressing the real problem the case presents--the existence of a second-class citizenry. This Article examines the Lawrence decision in light of both the international, regional, and foreign jurisprudence and the …

The Myth Of Strict Scrutiny For Fundamental Rights, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

Dissenting in Lawrence v. Texas, Justice Scalia stated that, under the Due Process Clause, if an asserted liberty is a "fundamental right," it triggers "strict scrutiny" that almost automatically invalidates any statute restricting that liberty. For strict scrutiny requires that the challenged statute, to be upheld, must further a "compelling governmental interest" and must be "necessary" or "narrowly tailored" to doing so. Scalia also wrote that if an asserted liberty is not a fundamental right, it is merely a "liberty interest" that triggers rational basis scrutiny that is so deferential that the Court all but automatically upholds the statute in …

The Ninth Circuit’S Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian C. Bartrum

Scholarly Works

When the Ninth Circuit handed down Witt v. Department of the Air Force, President Obama and then-Solicitor General Kagan declined to take an appeal to the Supreme Court. At the time, it seemed that most advocates of “Don’t Ask, Don’t Tell” believed that the administration made that decision because it was afraid the Supreme Court would reverse the Ninth Circuit. If that fear was perhaps well-founded in 2009, it is certainly less so now. In the wake of SmithKline Beecham Corp. v. Abbott Laboratories, as well as recent District Court decisions, opponents of federal constitutional protection for gay people …

Two Dads Are Better Than One: The Supreme Court Of Virginia's Decision In L.F. V. Breit And Why Virginia's Assisted Conception Statute Should Allow Gay Couples To Legally Parent A Child Together, Lauren Maxey

Law Student Publications

This comment examines whether gay men can have a child through a surrogacy arrangement in Virginia and whether gay men can retain parental rights through surrogacy contracts under the Virginia Assisted Conception Act. The Virginia laws affect gay males and gay females equally, but this comment addresses the issues arising with same-sex couples in the context of gay dads. Part II provides a background of surrogacy and specifically discusses surrogacy in relation to same-sex couples. Part III provides a general background of adoption and the establishment of parentage rights. Part IV describes the Assisted Conception Act, the legislative history of …

Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg

Faculty Scholarship

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument's evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it "obviously correct" that laws excluding same-sex couples from marriage discriminate facially based on …

Think Of The Children: Advancing Marriage Equality By Renewing The Focus On Same-Sex Adoption Litigation, Jacob M. Reif

Jacob M Reif

No abstract provided.

A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy’S Majority Opinion, Colin Starger

All Faculty Scholarship

After finding the Court had jurisdiction, Justice Kennedy’s majority opinion in United States v. Windsor reached the merits and concluded that the Defense of Marriage Act (DOMA) was in violation of the Fifth Amendment. In his dissent, Justice Scalia attacked the majority’s doctrinal reasoning on the merits as “nonspecific handwaving” that invalidated DOMA “maybe on equal-protection grounds, maybe on substantive due process grounds, and perhaps with some amorphous federalism component playing a role.”

This Visual Guide is a “doctrinal map” that responds to Scalia’s accusation by charting the doctrinal origins of Justice Kennedy’s majority opinion. Specifically, the map shows how …

Save Our Children: Overcoming The Narrative That Gays And Lesbians Are Harmful To Children, Anthony S. Niedwiecki

Publications

This paper focuses on how gay rights activists had no real choice but to use the court system to advance marriage rights for same-sex couples because they were unable to use the political process to effectively rebut the claim that gays and lesbian were harmful to children. Part I begins with an overview of the ways in which the initiative process has been used to limit gay rights and prevent marriage equality. It then details how, in contrast to the political process, courts have been more receptive to advancing marriage rights for same-sex couples. Part II details Walter Fisher's narrative …

Is False Imputation Of Being Gay, Lesbian, Or Bisexual Still Defamatory? The Arkansas Case, Jay Barth

University of Arkansas at Little Rock Law Review

Falsely identifying someone as lesbian, gay, or bisexual (LGB) has historically been defamation per se in American courts. In modern times, however, courts have become conflicted as to whether a false imputation of a person as LGB is defamatory. Accordingly, this article examines the roots of defamation law as it relates to sexual minorities, and then examines questions regarding the defamatory status of false identification of another as LGB, whether community or national standards should drive such a determination, and finally, to what degree is any legal recognition of harm to reputation for being LBG a perpetuation of the status …

"Don't Ask, Don't Tell," The Supreme Court, And Lawrence The "Laggard", Audrey K. Hagedorn

Indiana Law Journal

No abstract provided.

Animus Thick And Thin: The Broader Impact Of The Ninth Circuit Decision In Perry V. Brown, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

This essay is a response to an article by: Eskridge Jr., William N., The Ninth Circuit's Perry Decision and the Constitutional Politics of Marriage Equality, in 64 Stan. L. Rev. Online 93 (2012).

This essay examines the impact of Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), the first appellate federal court decision on the constitutional validity of marriage exclusion laws. The author argues that the major contribution of the Perry decision is to illuminate the meaning of animus, a term that is sharply contested in Equal Protection jurisprudence, and to explicate its relationship to standards of …

Disgust And The Problematic Politics Of Similarity, Courtney Megan Cahill

Michigan Law Review

Martha Nussbaum's latest book, From Disgust to Humanity: Sexual Orientation & Constitutional Law, could not have come at a more opportune time in the history of gay rights in the United States. All signs point to progress toward "humanity," from same-sex couples' successful bids for marriage equality in a handful of states to the public's increasing acceptance of the prospect of gays and lesbians serving openly in the military. Even if recent cognitive science research indicates that same-sex relationships provoke more than a little disgust in some people, landmark marriage-equality victories in a few states suggest that the law is …

Similarly Situated, Giovanna Shay

Faculty Scholarship

In recent marriage equality litigation, opponents of same-sex marriage have argued that gay and straight couples are not “similarly situated” with respect to the purposes of the marriage statutes. Courts in Iowa,Connecticut, and California have rejected these arguments (although the California result was overturned by Proposition 8, which itself was invalidated by a district court as this Article was being written). The Iowa and California courts also questioned the structure of the “similarly situated” analysis asserted by the opponents. Marriage equality opponents in those states pressed a “threshold”-type similarly situated analysis.Under this scheme, if the two groups are not similarly …

Section 5 Constraints On Congress Through The Lens Of Article Iii And The Constitutionality Of The Employment Non-Discrimination Act, Craig Konnoth

Publications

The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.

However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key …

Public Sex, Same-Sex Marriage, And The Afterlife Of Homophobia, Katherine M. Franke

Faculty Scholarship

The summer of 2011 marked an important turning-point in the geography and politics of sex: public sex, previously a domain dominated by the specter of a hypersexualized gay man, became the province of the irresponsible, foolish, and self-destructive heterosexual man, such as Anthony Weiner. Meanwhile, homosexuals were busy domesticating their sexuality in the private domain of the family. Just as hetero-sex shamefully seeped out into the open, homo-sex disappeared from view into the dignified pickets of private kinship. In this essay I examine the panic that unfolded in connection with Representative Weiner’s tweets as a kind of afterlife of homophobia; …

Dignifying Rights: A Comment On Jeremy Waldron’S Dignity, Rights, And Responsibilities, Katherine M. Franke

Faculty Scholarship

In Dignity, Rights, and Responsibilities1 Jeremy Waldron offers a characteristically thoughtful and elegant account of rights, or as he calls it, responsibility-rights. As Waldron rightfully acknowledges, rights understood as a form of responsibility are not meant to capture every species of rights, but to provide us with a new analytic resource for better understanding a particular subset of rights that curiously entail a form of responsibility on the part of the rights holder. The link between rights and responsibility, Waldron argues, is built upon a strong foundational commitment to human dignity. The most compelling contribution of Waldron's paper is his …

The Curious Relationship Of Marriage And Freedom, Katherine M. Franke

Faculty Scholarship

This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are …

Employment Discrimination Against Lesbians: Municipal Ordinances And Other Remedies, Andra Pearldaughter

Golden Gate University Law Review

No abstract provided.

The Case For Repeal Of India's Sodomy Law, Yuvraj Joshi

Yuvraj Joshi

This Article surveys some of the arguments for and against the repeal of India’s sodomy law. The first part analyses s.377 of the Indian Penal Code and considers its consequences for India's gay, lesbian, bisexual, transsexual, hijra and kothi persons. The second part provides an overview of the various theoretical and political positions taken in the sodomy law debate. The third part examines the rights-based arguments that have been made in support of repealing or reading down s.377, and the feminist and queer critiques of these arguments. The fourth part considers the arguments against the repeal that have been put …

Clarion Call Or False Alarm: Why Proposed Exemptions To Equal Marriage Statutes Return Us To A Religious Understanding Of The Public Marketplace, Taylor Flynn

Faculty Scholarship

This Article discusses the problematic issues arising from proposed religious exemptions to equal marriage statutes. In the Author's view these exemptions would create the societal framework in which lesbians, bisexuals, and gay men can be refused service in virtually all aspects of life, whether fundamental or mundane—from healthcare to housing, from employment to flower-buying. This would all be accomplished with the express permission of the state. The Author believes that these proposals could permit widespread discrimination on a multitude of protected bases. The proposals appear to have been crafted to seize on cultural and religious anxiety and fears concerning same-sex …