Law Commons^™

Same-Sex Marriage And Religion: An Inappropriate Relationship, Brittney Baker

e-Research: A Journal of Undergraduate Work

The debate over same-sex marriage has been a prominent issue in our society over many years now, appearing in several ballot initiatives such as California's Proposition 8. The idea of allowing two people of the same gender to enter into the institution of marriage has brought out drastic emotions and reactions from many different groups of people. Those who engage in the debate believe strongly in their convictions; the two loudest voices tend to come from the gay community and the religious community, the former arguing in favor of same-sex marriage and the latter against it. Religious groups, predominantly from …

Empathy, Open-Mindedness, And Political Ideology: Conservative And Liberal Trends, Dani Cosme, Chrissy Pepino, Brandon Brown

e-Research: A Journal of Undergraduate Work

This study hypothesizes that the religious variables will be superior to the predictive power of other demographic measures of the same population. This study will compare the results of religious questions to those of "To what economic class do you belong?" and "What is the highest level of education you have completed?" that are often used as reliable predictions of voting behavior.

The Effects Of Proposition 8 In The Lgbt Rights Movement In Orange County, Maria Claudia Brena

e-Research: A Journal of Undergraduate Work

Proposition 8 was a California ballot initiative that banned same-sex marriage in November of 2008. The issue of same-sex marriage is usually framed in the media as a political and cultural battle where the two opposing sides argue about the legal and cultural repercussions of the recognition of same-sex unions for same-sex relationships and society. Rather than focusing on the legal implications of the Proposition 8 campaign and its outcome, this paper addresses the campaign's effects in the LGBT Rights Movement in Orange County. During the campaign many LGBTs became politically active for the first time in their lives, but …

The Future Of Polyamorous Marriage: Lessons From The Marriage Equality Struggle, Hadar Aviram, Gwendolyn Manriquez Leachman

Hadar Aviram

Amidst the recent legal victories and growing public support for same-sex marriage, numerous polyamorous individuals have expressed interest in pursuing legal recognition for marriages between more than two consenting adults. This Article explores the possibilities that exist for such a polyamorous marriage equality campaign, in light of the theoretical literature on law and social movements, as well as our own original and secondary research on polyamorous and LGBT communities. Among other issues, we examine the prospect of prioritizing the marriage struggle over other forms of nonmarital relationship recognition; pragmatic regulative challenges, like taxation, healthcare, and immigration; and how law and …

The Ninth Circuit's Treatment Of Sexual Orientation: Defining “Rational Basis Review With Bite”, Ian Bartrum

Michigan Law Review First Impressions

On February 10, Nevada's Democratic attorney general decided to stop defending the state's constitutional amendment banning same-sex marriage, which is currently under review in the U.S. Court of Appeals for the Ninth Circuit. Perhaps even more surprising, Nevada's Republican governor agreed with that decision, concluding that the "case is no longer defensible in court." Ironically, all of this came after the plaintiffs had lost their case in the district court. But the federal constitutional landscape surrounding same-sex marriage is rapidly shifting, and in the nation's largest circuit change is coming quickly indeed. The latest upheaval—the decision that in fact prompted …

Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer

Nancy J. Knauer

When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of marriage laws …

“A Painful Process Of Waiting”: The New York, Washington, New Jersey, And Maryland Dissenting Justices Understand That “Same-Sex Marriage” Is Not What Same-Sex Couples Are Seeking, Barbara Cox

Barbara Cox

This essay focuses on the recent decisions by the highest courts of four states rejecting the claims of individuals in same-sex relationships that they must be permitted to marry the partner of their choice. In the cases of Hernandez v. Robles, Andersen v. King County, Lewis v. Harris, and Conaway v. Deane, a majority or plurality of each court determined that the bans preventing individuals in same-sex couples from marrying were constitutional. Understanding these cases is particularly important as additional state supreme courts address the cases of similar plaintiffs pending before them.

Strange Bedfellows: How An Anticipatory Countermovement Brought Same-Sex Marriage Into The Public Arena, Michael C. Dorf, Sidney Tarrow

Cornell Law Faculty Publications

Since the 1980s, social movement scholars have investigated the dynamic of movement/countermovement interaction. Most of these studies posit movements as initiators, with countermovements reacting to their challenges. Yet sometimes a movement supports an agenda in response to a countermovement that engages in what we call “anticipatory countermobilization.” We interviewed ten leading LGBT activists to explore the hypothesis that the LGBT movement was brought to the fight for marriage equality by the anticipatory countermobilization of social conservatives who opposed same-sex marriage before there was a realistic prospect that it would be recognized by the courts or political actors. Our findings reinforce …

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 …

Immutability And Innateness Arguments About Lesbian, Gay, And Bisexual Rights, Edward Stein

Chicago-Kent Law Review

A popular and intuitively plausible type of argument for the rights of lesbians, gay men, and bisexuals is based on claims that sexual orientations are inborn and/or unchangeable. Many advocates of such rights view expressing doubts about the immutability and innateness of sexual orientation as tantamount to opposing gay rights. Legally, claims that sexual orientations are innate and/or immutable intersect with the so-called immutability factor in equal protection jurisprudence. This article considers the legal, ethical, and empirical support for arguments for LGB rights based on immutability and innateness. I raise a variety of problems for such arguments in various contexts, …

When Art Becomes Free: On Artistic In-Expression & Personal Convictions, Amir H. Khoury

Amir Khoury

In this paper I argue that just as there are moral rights in copyright law, which secure attribution and integrity, so too, there should be 'inverse' moral rights that can protect artists from being impelled or compelled to create in the first place. This research comes against the backdrop of one of the most contentious issues in the Western world today, that pertaining to same-sex marriage. But the discussion applies to all other fields where creativity finds itself in a battle over personal convictions. In my view, the inverse moral rights construct is the true reflection of the extent of …

A "Bare ... Desire To Harm?" Marriage And Catholic Conscience Post - Windsor, Helen M. Alvare

helen m alvare

No abstract provided.

Multiplicity Of Marriage Forms In Contemporary South Africa, Roberto A. Garetto Ph.D.

Roberto A. Garetto Ph.D.

From the perspective of family law, South Africa seems particularly interesting as it recognizes a multiplicity of marriage forms, according to its laws: not only common law marriage, deeply linked with the traditions of Western culture, but also customary marriage and same-sex marriage. Customary marriage, a plural marriage practiced in the form of polygyny, is deeply related to the cultural identity of some South Africans; same-sex marriage is an innovation related to fundamental rights affirmed in the post-apartheid Constitution of 1996.

The South African Constitution has a highly advanced sensibility related to issues of human dignity, equality, and freedom. Both …

Let's Get Married: An Essay In Honor Of Mari Matsuda, Richard Delgado

Michigan Law Review First Impressions

Most unbiased evaluations of marriage as an institution consider it an unmitigated benefit, at least for those who enter into it willingly and avoid the shoals of divorce. Married people report higher levels of happiness than their unmarried counterparts, live longer, and lead healthier lives. They are less depressed, drink less, and report more satisfaction with their status than those who have never married or are divorced. The benefits of marriage also accrue to the children of married couples. The children of intact couples, whether straight or gay, are happier and more well adjusted, on average, than those of either …

Introduction: Invited Essays On The Implications Of Windsor And Perry

Indiana Law Journal

No abstract provided.

Is Japan Ready To Legalize Same-Sex Marriage?, Yuki Arai

Cornell Law School LL.M. Student Research Papers

Marriage is one of the most significant stages in one’s life. For many decades, gays and lesbians have been excluded from the legal institution of marriage solely because of their sexual orientation. However, the situation concerning same-sex marriage has drastically changed in many societies including the U.S. in the past several years. This recent wave of the opening of same-sex marriage has yet to reach my home country, Japan. In Japanese society where no religion opposing to same-sex activity is influential, gays and lesbians have not been persecuted criminally or religiously, which caused the absence of gay and lesbian rights …

Leveling Up After Doma, Deborah A. Widiss

Indiana Law Journal

Essays on the Implication of Windsor and Perry

Mini-Domas As Political Process Failures: The Case For Heightened Scrutiny Of State Anti-Gay Marriage Amendments, Steve Sanders

Articles by Maurer Faculty

No abstract provided.

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 …

Civil Rights 3.0, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

It is now commonplace to hear the LGBT rights movement being described as the last, or the next, or today’s, pre-eminent civil rights issue. This chapter will explore what that means from several perspectives: What does the label tell us about the civil rights paradigm itself? If the achievement of marriage equality is the great civil rights achievement of this generation, what does that suggest about a future for equality more generally? How have new forms of, and technologies for, movement building affected the idea and practice of civil rights? Does the civil rights paradigm have a future? I focus …

The Evolution Toward Judicial Independence In The Continuing Quest For Lgbt Equality, Susan J. Becker

Law Faculty Articles and Essays

Judicial decisions that hold same-sex marriage bans unconstitutional, no matter how that conclusion is reached, overturn laws or constitutional provisions that were passed with the support of a democratic majority. This Article takes an in-depth look at judicial activism and judicial independence to determine whether such victories for same-sex litigants were done properly by the judiciary. In the eyes of the Framers, an independent judiciary was to be a crucial check on the other branches’ constitutional limitations. With this in mind, judicial independence—where, in contrast with activism, judges meticulously apply the well-examined facts to controlling precedent without accounting for majority …

Weather Permitting: Incrementalism, Animus, And The Art Of Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

All Faculty Scholarship

Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animus-focused jurisprudence for lifting the discrimination against the …

Weather Permitting: Incrementalism, Animus, And The Art (And Sometimes Artifice) In Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

Jeremiah A. Ho

Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animus-focused jurisprudence for lifting the discrimination against the …