Law Commons^™

Baby, We Were Born This Way: The Case For Making Sexual Orientation A Suspect Classification Under The Equal Protection Clause Of The Fourteenth Amendment, Jennifer R. Covais

Touro Law Review

Currently, the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution provides minimal constitutional safeguards against discrimination based on sexual orientation. Laws that treat queer Americans differently than their straight counterparts are presumptively constitutional if those laws bear a rational relationship to any legitimate government interest. Consequently, states may limit same-goods and services of certain businesses, and qualify for government programs. The Supreme Court established enhanced equal protection guarantees for classifications based on race, ethnicity, and national origin which are deemed suspect classifications. These classifications will only survive judicial review if the government proves the law is necessary …

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

The Summer Of 2015, Sean Mangan

Freedom Center Journal

College of Law Professor Sean Mangan reflects on a series of dramatic events that occurred in Cincinnati during a few short weeks in the summer of 2015 and their implications for his own self-understanding as an individual, as a member of the local community, and as an American. Those events included weddings in Fountain Square that followed the Supreme Court’s vindication of the right to same-sex marriage as well as the tragic shooting deaths of Sonny Kim, Trepierre Hummons, and Samuel DuBose in acts involving police use of force.

Reconceptualizing Hybrid Rights, Dan T. Coenen

Scholarly Works

In landmark decisions on religious liberty and same-sex marriage, and many other cases as well, the Supreme Court has placed its imprimatur on so called “hybrid rights.” These rights spring from the interaction of two or more constitutional clauses, none of which alone suffices to give rise to the operative protection. Controversy surrounds hybrid rights in part because there exists no judicial account of their justifiability. To be sure, some scholarly treatments suggest that these rights emanate from the “structures” or “penumbras” of the Constitution. But critics respond that hybrid rights lack legitimacy for that very reason because structural and …

The Unnecessary And Unfortunate Focus On “Animus,” “Bare Desire To Harm,” And “Bigotry” In Analyzing Opposition To Gay And Lesbian Rights, James E. Fleming

Faculty Scholarship

I am delighted to participate in this symposium on Professor Linda C. McClain’s wonderful new book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. All of the other papers in this symposium focus on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (and thus connect with Chapter Eight of her book, on claims of religious exemptions from protections of gay and lesbian rights), while my piece will join issue with the related Chapter Seven, on bigotry, motives, and morality in the Supreme Court’s gay and lesbian rights cases. In this brief Essay, I cannot do justice …

Response To Commentaries On Who’S The Bigot?, Linda C. Mcclain

Faculty Scholarship

One of the joys of writing a book is the chance to have its arguments and observations evaluated by creative and engaged readers. I am very grateful that the scholars included in this book symposium provided such constructive commentary on the manuscript of my book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. One of those commentators, Professor Imer Flores, also generously hosted a wonderful live conference at which I had the chance to hear and engage with early versions of several of these commentaries. The final book, I hope, reflects improvements that grew out of …

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Law Faculty Articles and Essays

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex …

Newsroom: 'You Can't Help Being In Awe' 1-30-2018, Michael M. Bowden, Edward Fitzpatrick

Life of the Law School (1993- )

No abstract provided.

Dissenting From History: The False Narratives Of The Obergefell Dissents, Christopher R. Leslie

Indiana Law Journal

According to a quote attributed to numerous philosophers and political leaders, “History is written by victors.”1 In the legal battle over same-sex marriage, those opposed to marriage equality have attempted to disprove this age-old adage. In response to the majority opinion in Obergefell v. Hodges—which held that state laws banning same-sex marriage violate the Fourteenth Amendment—each of the four dissenting Justices issued his own dissenting opinion. Every one of these dissents misrepresented the circumstances and precedent leading up to the Obergefell decision. Collectively, the Obergefell dissenters have valiantly tried to rewrite America’s legal, constitutional, and social history, all in an …

Find Out What It Means To Me: The Politics Of Respect And Dignity In Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

All Faculty Scholarship

This accompanying article considers the state of LGBTQ equality after the Supreme Court’s decision in Obergefell v. Hodges in 2015. Specifically, by examining this upsurge of social visibility for same-sex couples as both acceptance of sexual minorities and cultural assimilation, the article finds that the marriage cases at the Supreme Court — Obergefell and U.S. v. Windsor — shifted the framing of gay rights from the politics of respect that appeared more than a decade ago in Lawrence v. Texas toward a politics of respectability. The article traces this regression in Justice Kennedy’s own definition of dignity from Lawrence, where …

Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr.

Law Faculty Articles and Essays

This article is set forth in five parts. Part II is largely descriptive and focuses on two aspects of Obergefell: (1) the Court's clarification that adult, private, consensual, same-sex sexual intimacy is a fundamental right, protected by the U.S. Constitution's Fourteenth Amendment Due Process Clause and (2) the Court's recognition that leading mental health and medical groups consider sexual orientation to be immutable. Part III examines how courts and the EEOC have treated sexual orientation discrimination under Title VII and contains a normative discussion which argues—consistent with the position of other commentators, some courts, and the EEOC—that sexual orientation …

Conscience Protection And Discrimination In The Republican Party Platform And Mississippi's H.B. 1523, Religious Freedom Institute, Linda C. Mcclain

Faculty Scholarship

Last May, before the Supreme Court issued its landmark opinion in Obergefell v. Hodges,Cornerstone sponsored a symposium on “Responding to Indiana RFRA and Beyond,” which focused on Governor Mike Pence’s swift “fix” of Indiana’s RFRA, after protests and threats of boycotts, to clarify that it would “not create a license to discriminate.” Particularly controversial were provisions protecting the conscience of persons operating for-profit businesses. In that symposium, I observed that public discourse frequently referred back to the Civil Rights Act of 1964, because “many people relate the current battle over protecting conscience in the context of …

Trending @ Rwu Law: Dean Yelnosky's Post: What The Tragedy In Orlando Means For Rwu Law 6/17/2016, Michael Yelnosky

Law School Blogs

No abstract provided.

Words Left Unsaid: Justice Kennedy's Opinion In Obergefell V. Hodges And The Future Of Lgbt Rights In America, Antonia Lluberes

Senior Theses and Projects

No abstract provided.

Find Out What It Means To Me: The Politics Of Respect And Dignity In Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

Faculty Publications

This accompanying article considers the state of LGBTQ equality after the Supreme Court’s decision in Obergefell v. Hodges in 2015. Specifically, by examining this upsurge of social visibility for same-sex couples as both acceptance of sexual minorities and cultural assimilation, the article finds that the marriage cases at the Supreme Court — Obergefell and U.S. v. Windsor — shifted the framing of gay rights from the politics of respect that appeared more than a decade ago in Lawrence v. Texas toward a politics of respectability. The article traces this regression in Justice Kennedy’s own definition of dignity from Lawrence, where …

Once We're Done Honeymooning: Obergefell V. Hodges, Incrementalism, And Advances For Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

Faculty Publications

Undoubtedly, the Supreme Court’s marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since U.S. v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the U.S. was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQ movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell can somehow leverage …

Once We're Done Honeymooning: Obergefell V. Hodges, Incrementalism, And Advances For Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

All Faculty Scholarship

Undoubtedly, the Supreme Court’s marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since U.S. v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the U.S. was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQ movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell can somehow leverage …

Half-Baked: The Demand By For-Profit Businesses For Religious Exemptions From Selling To Same-Sex Couples, James M. Donovan

Loyola of Los Angeles Law Review

Should bakers be required to make cakes for same-sex weddings? This Article unravels the eclectic arguments that are offered in support of a religious exemption from serving gay customers in the wake of Obergefell.

Preliminary issues first consider invocations of a libertarian right to exclude. Rather than being part of our concept of liberty, this right to exclude from commercial premises is a new rule devised to prevent African Americans from participating in free society. Instead of expanding this racist rule to likewise bar gays from the marketplace, it should be reset to the antebellum standard of free access …

Gay Rights Versus Religious Freedom, And The Influence Of Obergefell V. Hodges On Distinguishing The Dividing Line, Kathleen Rainey Mcstravick

St. Mary's Law Journal

Obergefell v. Hodges, a United States Supreme Court case, added more fuel to the fire, leaving many to wonder how to voice religious opposition to same-sex marriages, and what are the second order effects for religious opposition in light of the new rule. The Court held the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution guarantees protection against discrimination based on sexual orientation. Obergefell, brings the conflict between freedom of religion and LGBT rights to a new level by questioning how far freedom of religion can be used to refuse anti-discrimination statutes regarding sexual …

The Respectable Dignity Of Obergefell V. Hodges, Yuvraj Joshi

Yuvraj Joshi

In declaring state laws that restrict same-sex marriage unconstitutional, Justice Kennedy invoked “dignity” nine times—to no one’s surprise. References in Obergefell to “dignity” are in important respects the culmination of Justice Kennedy’s elevation of the concept, dating back to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey. In Casey, “dignity” expressed respect for a woman’s freedom to make choices about her pregnancy. Casey laid the foundation for Lawrence v. Texas, which similarly respected the freedom of choice of homosexual persons. Yet, starting in United States v. Windsor and continuing in Obergefell, the narrative began to change. Dignity veered …

Trending @ Rwu Law: Christopher Gerlica's Post: Beyond Same-Sex Marriage, Christopher Gerlica

Law School Blogs

No abstract provided.

Substantive Due Process For Noncitizens: Lessons From Obergefell, Anthony O'Rourke

Michigan Law Review First Impressions

The state of Texas denies birth certificates to children born in the United States—and thus citizens under the Fourteenth Amendment—if their parents are undocumented immigrants with identification provided by their home countries’ consulates. What does this have to do with same-sex marriage? In a previous article, I demonstrated that the Supreme Court’s substantive due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This Essay builds on my earlier analysis by examining United States v. Obergefell’s applications outside the context of same-sex marriage. Obergefell’s due process holding, I argue, can …

Venturing Into A Minefield: Potential Effects Of The Hobby Lobby Decision Of The Lgbt Community., Aglae Eufracio

The Scholar: St. Mary's Law Review on Race and Social Justice

While freedom of religion is a right guaranteed to the American people, what that freedom entails, is often misunderstood. Religious freedom affords every American the right to practice any faith without fear of being persecuted or ostracized by the government. This fundamental right is frequently used to oppress certain groups of Americans because their lifestyle is not in accordance with traditional Christian values. This was highlighted in the recent case of Burwell v. Hobby Lobby. The controversy stemmed from the corporation’s use of religion as a method to deny women access to full healthcare coverage, citing religious opposition to abortion …