Law Commons^™

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 …

Sexual Rights And State Governance, Katherine M. Franke

Faculty Scholarship

We sit at an interesting juncture in the evolution (in some cases, devolution) of the idea of sexual rights in international law. For at the very moment that we are experiencing a retraction in both domestic and international commitments to rights associated with sexual and reproductive health, we see sexual rights of a less-reproductive nature gaining greater uptake and acceptance. It is the moral hazard associated with perceived gains in the domain of international rights for lesbians and gay men that I want to address today. In the end, the point I want to bring home is that a particular …

Sexual Politics And Social Change, Darren Lenard Hutchinson

UF Law Faculty Publications

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the "political opportunity" for the Lawrence ruling and made the opinion relatively "safe".

Currently, GLBT rights …

Foreword: Assisted Reproductive Technology And The Law, Mary P. Byrn

Faculty Scholarship

This foreword introduces Issue 2: Assisted Reproductive Technology and the Law of the 35th Volume of the William Mitchell Law Review. It begins by outlining the author's personal experience with ART, and contrasts her reasoning for using ART with the traditional need for ART. Finally, it lists some of the many legal questions yet to be conclusively answered.

Bringing Sexual Orientation And Gender Identity Into The Tax Classroom, Anthony C. Infanti

Articles

A recent piece in the Journal of Legal Education analyzing student surveys by the Law School Admission Council reports that, despite improvement in the past decade, LGBT students still experience a law school climate in which they encounter substantial discrimination both inside and outside the classroom. Included among the list of "best practices" to improve the law school climate for LGBT students was a recommendation to incorporate discussions of LGBT issues in non-LGBT courses, such as tax. In a timely coincidence, the Section on Sexual Orientation and Gender Identity Issues held a day-long program at the 2009 AALS annual meeting …

Surveying The Legal Landscape For Pennsylvania Same-Sex Couples, Anthony C. Infanti

Articles

Recent advances in the battle over same-sex marriage in Connecticut, California, Iowa, Maine, New Hampshire, and Vermont led some commentators to describe this as a “watershed” moment. These legal and legislative wins - however tentative - created a sense of momentum in favor of lesbian and gay rights advocates in the battle over same-sex marriage. Yet, it would be a mistake to allow jubilation over these wins to obscure the larger perspective on this battle. We should not lose sight of the fact that, with the exception of Iowa, same-sex couples in each of these jurisdictions could already obtain legal …

Teaching Freedom: Exclusionary Rights Of Student Groups, Joan W. Howarth

Scholarly Works

Progressive, anti-subordination values support robust First Amendment protection for high school and university students, including strong rights of expressive association, even when those rights clash with educational institutions' nondiscrimination policies. The leading cases addressing the conflicts between nondiscrimination policies and exclusionary student groups are polarized and distorted by their culture war context. That context tainted the leading authority, Boy Scouts of America v. Dale, and is especially salient in the student expressive association cases, many of which are being aggressively litigated by religious groups with strong anti-homosexuality goals. The strength of these First Amendment claims can be difficult to recognize …

Deconstructing The Duty To The Tax System: Unfettering Zealous Advocacy On Behalf Of Lesbian And Gay Taxpayers, Anthony C. Infanti

Articles

In this article, I consider how the tax lawyer's generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit "lottery." The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax …

The Geronimo Bank Murders: A Gay Tragedy, Joan W. Howarth

Scholarly Works

The Geronimo Bank Murders examines the intersection of homosexuality and capital punishment through the lenses of cultural criticism, queer theory, and legal analysis. The paper's subject is Jay Neill, who was executed in 2002 for murdering four people in a gruesome Geronimo, Oklahoma bank robbery in 1984, and for being gay. Current capital punishment doctrine permits, and perhaps even encourages, such results. The Geronimo Bank Murders recasts Neill's story, privileging homosexuality and gender, and uses that account to make three points, each based in law, culture, and politics. First, as a matter of legal doctrine, recognizing the error in using …

Homo Sacer, Homosexual: Some Thoughts On Waging Tax Guerrilla Warfare, Anthony C. Infanti

Articles

Inspired by Giorgio Agamben's Homo Sacer: Sovereign Power and Bare Life, this essay raises the question whether lesbians and gay men should fundamentally rethink their relationship with the law. Until now, lesbians and gay men have played by the rules: We bide our time for the appropriate moment to challenge the application of the law, and then do so from within the legal system through impact litigation. Focusing on Agamben's discussion of Kafka's parable, "Before the Law," this essay challenges us to consider whether, instead of engaging the law on its own terms, lesbians and gay men should use the …

The Authoritative Moment: Exploring The Boundaries Of Interpretation In The Recognition Of Queer Families, Kris Franklin

Articles & Chapters

This article examines the boundaries of judicial interpretation as courts struggle to define the families formed by lesbians, gay men and transexuals. It compares the jurisprudence of numerous state courts examining queer families in different contexts. The article identifies three interwoven components of judicial reasoning: "lex" reasoning, grounded in the jurisdiction's binding and persuasive law; factual reasoning in which the courts must categorize queer families as analogous to those the law already recognizes or instead as something quite new and distinct; and finally methodological reasoning, in which courts self-consciously examine the boundaries of their own interpretive authority. Showing that in …

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

Articles, Book Chapters, & Popular Press

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 …

Tax Protest, A Homosexual, And Frivolity: A Deconstructionist Meditation, Anthony C. Infanti

Articles

In this contribution to a symposium entitled Out of the Closet and Into the Light: The Legal Issues of Sexual Orientation, I recount and then ponder the story of Robert Mueller. Mueller, a gay man, spent more than a decade protesting the discriminatory treatment of gays and lesbians under the Internal Revenue Code. As a result of his tax protest, Mueller was jailed for more than a year, and then was twice pursued by the IRS for taxes and penalties. In pondering Mueller's story, I consider it both as a telling example of the forcible closeting of gay and lesbian …

Political Representation And Accountability Under Don't Ask, Don't Tell, Tobias Barrington Wolff

All Faculty Scholarship

The U.S. military's Don't Ask, Don't Tell policy constitutes a singular type of speech regulation: an explicit prohibition on identity speech by a defined population of individuals that mandates a state of complete social invisibility in both military and civilian life. The impact of such a regulation upon the public speech values protected by the First Amendment should not be difficult to apprehend. And yet, as the tenth anniversary of the policy approaches, First Amendment scholars have largely ignored this seemingly irresistible subject of study, and the federal courts have refused to engage with the policy's implications for public speech …

Transgender Jurisprudence: Dysphoric Bodies Of Law, Jennifer L. Levi

Faculty Scholarship

This is a book review of Andrew Sharpe's "Transgender Jurisprudence: Dysphoric Bodies of Law." The Author discusses the contribution Sharpe makes to the transgender rights movement as invaluable for two reasons. First, it provides the first in-depth and full-length comprehensive treatment of the topic of transgender jurisprudence, and emerges as the foundational work by which others will be measured. Second, it exposes the homophobia underlying many of the key decisions, particularly in the area of marriage and family law, and provides an important link between the lesbian, gay, bisexual, and transgender movements which should not be ignored by activists from …

Writing Rules Does Not Right Wrongs, Odeana R. Neal

All Faculty Scholarship

I believe the work that lawyers, legal academics, and judges do is important. Our work allows us to devise legal theories, develop litigation strategies and determine outcomes that can make a tremendous difference in people's lives. As a result, I applaud the insight and creativity of Judge Beck and Professors Glennon and Goldfarb. Their work demonstrates how law can be used to protect gay men, lesbians, bisexuals, their relationships and their families.

The Limits Of Legal Discourse: Learning From The Civil Rights Movement In The Quest For Gay And Lesbian Civil Rights, Odeana R. Neal

All Faculty Scholarship

The African-American struggle for civil rights has been a long one, one that began with the importation of the first black person into the country as a slave, and continues today. Through radical political struggle coupled with legal precedent, de jure segregation became a part of the past of the United States. Meticulous legal strategizing by the NAACP Legal Defense Fund culminated with the Supreme Court's decision in Brown v. Board of Education, which declared unconstitutional the governmental practice of segregating on the basis of race. Careful legislative lobbying—as well as the threats posed by radical black political groups who …

Geographically Sexual?: Advancing Lesbian And Gay Interests Through Proportional Representation, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

Part I of this Article explores lesbian and gay interests and representational characteristics. Part II highlights the inadequacies of a single-member districting system in representing the interests of lesbian and gay communities. It concludes with an examination of the New York City Council's 1991 redistricting, where the mobilization of strong lesbian and gay communities in a receptive environment nonetheless failed to lead to effective representation of lesbian and gay interests in the City Council. Part III describes proportional representation systems and reveals how such systems would better serve lesbian and gay communities. Part IV acknowledges the political and legal obstacles …

First And Last Chance: Looking For Lesbians In California's Fifties Bar Cases, Joan W. Howarth

Scholarly Works

Do all of us who choose members of our own sex as objects of desire and as sexual partners share some meaningful common identity, such as “homosexual,” “gay” or perhaps “queer”? The classifications “homosexual” and “gay” claim for themselves just that kind of inclusiveness; that is, that the gay world includes people of all races, all classes and any possible gender identity. You, me, James Baldwin, Gertrude Stein, J. Edgar Hoover: we are all gay together. In this way “homosexual” or “gay” is a generic term, like, for example, “human being.” But we know that the alleged inclusiveness masks just …

Queer Intersectionality And The Failure Of Recent Lesbian And Gay "Victories", Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

Part I of this essay will introduce the queer theories underlying my critique and will outline the discrete positioning of lesbian and gay identity and community which labels these cases “victories.” The intersectionality of queer identity is the key blind spot in the litigation model. The queer continuum, a re-conceptualization of Adrienne Rich's lesbian continuum, delineates the spectrum of queer identity. Part II will explore the facts, issues and holdings of these four cases. My examination of these cases will reveal how they grant some rights to “but-for” queers, who, “but-for” their being lesbian or gay, would be “perfect citizens.” …

Parading Ourselves: Freedom Of Speech At The Feast Of St. Patrick, Larry Yackle

Faculty Scholarship

Three things are true. First, American society is now absorbed in yet another great civil rights movement, this one on behalf of gay, lesbian, and ambisexual citizens, which will lead ineluctably to the elimination of legal burdens on the basis of sexual orientation.' Change will come slowly, with much backing and filling, and at an awful price measured in human pain. Intolerance for the homosexualities that exist among us, and the homosexual behavior in which many of us engage, will persist in quarters where the law cannot reach.2 Yet private homophobia, deprived of legal sanction, will ultimately be discredited and …

The (Queer) Revolution Will Not Be Liberalized, Sarah E. Chinn, Kris Franklin

Articles & Chapters

No abstract provided.

Watkins V. United States Army And The Employment Rights Of Lesbians And Gay Men, Arthur S. Leonard

Articles & Chapters

No abstract provided.

The Rights Of Gay Prisoners: A Challenge To Protective Custody, Joan W. Howarth

Scholarly Works

This Note focuses on the specific issues raised by the traditional method of dealing with homosexuals in prison: isolation from the general prison population. This traditional segregation often results in almost twenty-four hour-a-day confinement to a cell, which severely limits access to programs and opportunities normally enjoyed by prisoners.

This Note first discusses the history and current practice of segregation of gay prisoners' as well as the broader subject of protective custody, and then outlines the judicial response to the problems of protective custody prisoners generally and gay prisoners specifically. It then critiques the judicial confusion and resulting reluctance to …