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Articles 1 - 30 of 71
Full-Text Articles in Law
On The Why Of Same-Sex Marriage In Cuba, Libby Adler
On The Why Of Same-Sex Marriage In Cuba, Libby Adler
FIU Law Review
Cuba is expected to revise its family code soon and the legal availability of marriage to a person of the same sex will be among the anticipated revisions. This essay pushes past the assumption that same-sex marriage operates as an obvious item along any nation’s progressive path, or a universally desirable and sensible legal advance, and inquires as to the why. In a country that is markedly less religious than its neighbors, has a low marriage rate accompanied by a comparatively high divorce rate, and socializes resources such as health care such that they do not depend on marital ties, …
Now, I'M Liberal, But To A Degree: An Essay On Debating Religious Liberty And Discrimination, Francis J. Beckwith
Now, I'M Liberal, But To A Degree: An Essay On Debating Religious Liberty And Discrimination, Francis J. Beckwith
Cleveland State Law Review
This essay is a critical analysis of the book authored by John Corvino, Sherif Girgis, and Ryan T. Anderson, Debating Religious Liberty and Discrimination. The book offers two contrary views on how best to think about some of the conflicts that have arisen over religious liberty and anti-discrimination laws, e.g., Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018). One position is defended by Corvino, and the other by Girgis and Anderson. After a brief discussion of the differing views of religious liberty throughout American history (including the American founding), this essay summarizes each …
The Strange Pairing: Building Alliances Between Queer Activists And Conservative Groups To Recognize New Families, Nausica Palazzo
The Strange Pairing: Building Alliances Between Queer Activists And Conservative Groups To Recognize New Families, Nausica Palazzo
Michigan Journal of Gender & Law
This Article explores some of the legal initiatives and reforms that opponents of same-sex marriage in Canada and the United States have pushed forward. Despite being animated by a desire to dilute the protections for same-sex couples, these reforms resulted in “queering” family law, in the sense that they functionalized the notion of family. Consequently, two cohabiting relatives or friends would be eligible for legal recognition, along with all the public and private benefits of such recognition. I term these kinds of “unions” and other nonnormative relationships to be “new families.”
The central claim of this Article is thus that …
The “Legal Stranger” And Parent: A Love Story?, Kellie Mahoney
The “Legal Stranger” And Parent: A Love Story?, Kellie Mahoney
Touro Law Review
No abstract provided.
Fallout From Obergefell: The Dissolution Of Unconventional Adoptions To Pave The Way For Same-Sex Marriage Equality, Jodi B. Mileto
Fallout From Obergefell: The Dissolution Of Unconventional Adoptions To Pave The Way For Same-Sex Marriage Equality, Jodi B. Mileto
West Virginia Law Review
No abstract provided.
Assisted Reproduction Inequality And Marriage Equality, Seema Mohapatra J.D., Mph
Assisted Reproduction Inequality And Marriage Equality, Seema Mohapatra J.D., Mph
Chicago-Kent Law Review
In Obergefell v. Hodges, Justice Kennedy declared that “marriage is fundamental under the Constitution and [should] apply with equal force to same-sex couples.” This Article examines how the advent of marriage equality may impact the rights of same-sex couples to have biological children via assisted reproduction and surrogacy. Specifically, this Article points out the ways that the Obergefell decision affects the law of infertility. By the law of infertility, I mean the laws that require insurance coverage of infertility treatments and other assisted reproductive technologies (“ART”). Because same-sex couples are not able to have biological children with each other …
Parents, Babies, And More Parents, June Carbone, Naomi Cahn
Parents, Babies, And More Parents, June Carbone, Naomi Cahn
Chicago-Kent Law Review
This Article makes two basic points. First, the three-parent family is here. Once states accept that parenthood does not depend on either biology or marriage, then three parents are inevitable unless the states go out of their way to rule that adults who otherwise meet their definitions of parenthood will not be recognized. Second, as three-parent family recognition increases, there are difficult questions on how to manage the status of each parent. This difficulty arises because the two major trends in the family law—the recognition of a multiplicity of family forms and the insistence on parental equality—are on a collision …
Obergefell’S Ambiguous Impact On Legal Parentage, Leslie Joan Harris
Obergefell’S Ambiguous Impact On Legal Parentage, Leslie Joan Harris
Chicago-Kent Law Review
For more than thirty years, the central questions of the law of parentage have been when and to what extent determinations of legal parenthood should be based on biological relationship, marriage to a child’s biological parent, or functioning as or intending to be a parent. In Obergefell v. Hodges, the Supreme Court endorsed the claim that children whose parents are married are better off socially and legally than nonmarital children; its language could easily be taken to support legal rules that encourage or prefer childrearing within marriage. On the other hand, the Court’s argument assumes that the same-sex couple—both members—are …
Quacking Like A Duck? Functional Parenthood Doctrine And Same-Sex Parents, Katharine K. Baker
Quacking Like A Duck? Functional Parenthood Doctrine And Same-Sex Parents, Katharine K. Baker
Chicago-Kent Law Review
This Article unpacks the relationship between the functional parenthood doctrine, constitutionally protected parental autonomy rights and intent-to-parent tests as they are applied in same-sex parenting relationships. It argues that, with the advent of same-sex marriage and second parent adoption, the functional parent doctrine is unnecessary and ultimately counterproductive to anyone interested in expanding legal recognition of non-traditional family forms. The functional parent doctrine asks courts to employ traditional understandings of parenthood (“Who acted like a parent?”) in assigning parental status.
These traditional understandings are usually, if not inevitably, dyadic, heteronormative, genetic, and gendered. In practice, the functional parent doctrine undermines …
Dissenting From History: The False Narratives Of The Obergefell Dissents, Christopher R. Leslie
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 …
"In Sickness And In Health, Until Death Do Us Part": An Examination Of Fmla Rights For Same-Sex Spouses And A Case Note On Obergefell V. Hodges, Jasmine Foo
Journal of the National Association of Administrative Law Judiciary
This note discusses the history of the lesbian, gay, bisexual, and transgender (LGBT) struggle for equal rights alongside the Supreme Court's recent ruling in Obergefell v. Hodges and uses this to examine the potential effect on the rights granted to same-sex spouses by the Family Medical Leave Act (FMLA). Part II records the jurisprudence that has slowly evolved over the past forty to fifty years to make the present a more hospitable era for same-sex marriage to take root today. Part III gives a general overview of the FMLA's history and current form. Part IV reviews the facts prompting the …
Traditional Problems: How Tribal Same-Sex Marriage Bans Threaten Tribal Sovereignty, Marcia Zug
Traditional Problems: How Tribal Same-Sex Marriage Bans Threaten Tribal Sovereignty, Marcia Zug
Mitchell Hamline Law Review
No abstract provided.
The Same-Sex Marriage Cases And Federal Jurisdiction: On Third-Party Standing And Why The Domestic Relations Exception To Federal Jurisdiction Should Be Overruled, Steven G. Calabresi, Genna L. Sinel
The Same-Sex Marriage Cases And Federal Jurisdiction: On Third-Party Standing And Why The Domestic Relations Exception To Federal Jurisdiction Should Be Overruled, Steven G. Calabresi, Genna L. Sinel
University of Miami Law Review
In this paper, we consider two questions. First, we address whether there was proper standing for the Article III courts to decide United States v. Windsor, 570 U.S. 133 S. Ct. 2675, 2696 (2013) and Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013). We conclude that the third-party appellants lacked standing in federal court. Second, we examine whether cases challenging state same-sex marriage bans were and are cases in “law and equity” or instead, barred under the domestic relations exception for the purposes of federal question jurisdiction. We conclude that the domestic relations exception to federal jurisdiction is an …
Doma And Diffusion Theory: Ending Animus Legislation Through A Rational Basis Approach, David J. Herzig
Doma And Diffusion Theory: Ending Animus Legislation Through A Rational Basis Approach, David J. Herzig
Akron Law Review
The purpose of this Article is to expand the scope of the discussion from one of morality to include a sociological approach, called Diffusion Theory...Section II of this Article explains Diffusion Theory. Section III explores the background of DOMA and the factual background in which DOMA is being challenged by the states and private citizens. Section IV discusses the fundamentals behind the Florida adoption ban and how the change in the message by the challengers has proven effective. The final part, Section V, analyzes whether the approach should center on the inevitability of the change, as reflected in the Justice …
More Than A Piece Of Paper: Same-Sex Parents And Their Adopted Children Are Entitled To Equal Protection In The Realm Of Birth Certificates, Shohreh Davoodi
More Than A Piece Of Paper: Same-Sex Parents And Their Adopted Children Are Entitled To Equal Protection In The Realm Of Birth Certificates, Shohreh Davoodi
Chicago-Kent Law Review
In Adar v. Smith, the Fifth Circuit held that Louisiana’s policy of refusing to issue accurate birth certificates to the children of out-of-state, same-sex adoptive parents does not deny those families equal protection of the law. This comment demonstrates that Louisiana’s policy does in fact violate the Equal Protection Clause. There are two ways Louisiana’s policy infringes on the rights of these families. First, the policy burdens fundamental rights stemming from the family autonomy of both parents and children. Second, the policy discriminates against out-of-state same-sex parents, treating them like second-class citizens. These concerns are strong enough that the …
Marriage, The Constitution, And The Future Of Family Law, Mark Strasser
Marriage, The Constitution, And The Future Of Family Law, Mark Strasser
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Back To The Future: How Illinois' Legalization Of Same-Sex Relationships Retroactively Affects Marital Property Rights, Eric J. Shinabarger
Back To The Future: How Illinois' Legalization Of Same-Sex Relationships Retroactively Affects Marital Property Rights, Eric J. Shinabarger
Chicago-Kent Law Review
Until 2011, Illinois viewed same-sex relationships as “against public policy” and refused to recognize any same-sex civil union or marriage. However, many Illinois residents traveled to progressive jurisdictions in order to enter into legal samesex relationships. Afterwards, they returned to their lives in Illinois and lived together as married couples despite Illinois’ lack of recognition.
When Illinois legalized same-sex civil unions in 2011 and same-sex marriages in 2014, it immediately flipped a switch and began retroactively recognizing same-sex relationships entered into in other jurisdictions. While this prevents same-sex couples from being forced to jump through hoops to re-legalize their relationships, …
Certiorari And The Marriage Equality Cases, Carl Tobias
Certiorari And The Marriage Equality Cases, Carl Tobias
University of Michigan Journal of Law Reform Caveat
Marriage equality has come to much of the nation. Over 2014, many district court rulings invalidated state proscriptions on same- sex marriage, while four appeals courts upheld these decisions. However, the Sixth Circuit reversed district judgments which struck down bans in Kentucky, Michigan, Ohio, and Tennessee. Because that appellate opinion created a patchwork of differing legal regimes across the country, this Paper urges the Supreme Court to clarify marriage equality by reviewing that determination this Term.
Comity Of Errors: Foreign Same-Sex Marriages In New York, Gennaro Savastano
Comity Of Errors: Foreign Same-Sex Marriages In New York, Gennaro Savastano
Touro Law Review
No abstract provided.
How Lawyers Manage Intragroup Dissent, Scott L. Cummings
How Lawyers Manage Intragroup Dissent, Scott L. Cummings
Chicago-Kent Law Review
This essay, adapted from the keynote speech for the conference, reflects upon how lawyers respond to dissent within social movements—over the goals of social change efforts and the means of pursuing them. Drawing upon case studies from the LGBT rights and labor contexts, it describes specific challenges to managing dissent within “top-down” and “bottom-up” lawyering models. From the top-down, it explores how lawyers in the California marriage equality movement addressed repeated legal challenges over litigation tactics. From the bottom-up, it describes how lawyers for a community-labor coalition dealt with competing conceptions of the public good in a campaign to stop …
Student Comment: “Love Is Patient, Love Is Kind”: A Comparative Study Helping The United States Reach Marriage Equality, Nicole Rush
University of Baltimore Journal of International Law
This paper evaluates same-sex marriage policies in three industrialized countries: the Netherlands, the United Kingdom and Canada. In assessing the legislative and judicial history of same-sex marriage policies in each country, as well as other influential factors leading to these policies, this research helps to create a roadmap to reach a nationwide policy for the United States. By comparing the current history of the United States’ same-sex marriage policies to that of the aforementioned countries, it is possible to develop a plan to achieve marriage equality in the U.S.
Introduction: Invited Essays On The Implications Of Windsor And Perry
Introduction: Invited Essays On The Implications Of Windsor And Perry
Indiana Law Journal
No abstract provided.
Leveling Up After Doma, Deborah A. Widiss
Leveling Up After Doma, Deborah A. Widiss
Indiana Law Journal
Essays on the Implication of Windsor and Perry
Same-Sex Divorce In The United States: Protecting The Interests Of The Children, Joan Catherine Bohl
Same-Sex Divorce In The United States: Protecting The Interests Of The Children, Joan Catherine Bohl
University of Miami Race & Social Justice Law Review
In light of recent political, legal, and legislative developments, the status of same-sex couples across the United States has become increasingly complex. This article focuses on the issue of same-sex divorce in a mobile society. When a same-sex couple moves from a state recognizing same-sex marriage—or from Canada—to a state that does not expressly recognize same-sex marriage, dissolution of that marriage can become a byzantine problem much more complex than a state’s “official” position on same-sex marriage. Relevant factors can range from the state’s legislative and executive pronouncements affecting homosexual citizens in areas such as pension benefits and health plans …
Family Law's Challenge To Religious Liberty, Raymond C. O'Brien
Family Law's Challenge To Religious Liberty, Raymond C. O'Brien
University of Arkansas at Little Rock Law Review
Over time, the definition of family has shifted from being premised upon kinship to legal status. In modern times, family structure is based more upon function than form, seeking to derive its status as a family from the subjective intent of its members to act as a family. Many early settlers in the colonial territories came to America to escape religious persecution and practice their own religion.
For that reason, biblical language and religious doctrine formed the basis for common law, statutes, and practice. Today, there remains the notion among many Americans that the law represents a divine plan and …
National Report: Uruguay , Walter Howard
National Report: Uruguay , Walter Howard
American University Journal of Gender, Social Policy & the Law
No abstract provided.
National Report: Turkey, Başak Başoğlu, Candan Yasan
National Report: Turkey, Başak Başoğlu, Candan Yasan
American University Journal of Gender, Social Policy & the Law
No abstract provided.
National Report: Switzerland, Annelot Peters
National Report: Switzerland, Annelot Peters
American University Journal of Gender, Social Policy & the Law
No abstract provided.
National Report: Japan, Teiko Tamaki
National Report: Japan, Teiko Tamaki
American University Journal of Gender, Social Policy & the Law
No abstract provided.
National Report: Ireland, Aisling Parkes
National Report: Ireland, Aisling Parkes
American University Journal of Gender, Social Policy & the Law
No abstract provided.