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Full-Text Articles in Law
Book Review: Kermit Roosevelt Iii, The Nation That Never Was: Reconstructing America's Story, Ainslee Johnson-Brown
Book Review: Kermit Roosevelt Iii, The Nation That Never Was: Reconstructing America's Story, Ainslee Johnson-Brown
ConLawNOW
This review summarizes the key thesis of the book, The Nation That Never Was, which argues for a reset of the Constitutional baseline of principles. The book argues that the Gettysburg Address should be considered a key part of modern constitutional guarantees of equality and liberty. The review explains this thesis, and notes the questions it leaves open.
Symposium: Sexual Orientation, Gender Identity & The Constitution: Love Is Love: The Fundamental Right To Love, Marriage, And Obergefell V. Hodges, Reginald Oh
ConLawNOW
Why is same-sex marriage a constitutional right of individual autonomy and dignity? Because of love. Based on a close reading of Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges, this essay will argue that Obergefell is best understood as an opinion about the centrality of love, not just marriage, for individual self-realization. It is love that helps make sense of Kennedy’s opinion. If love is not understood to be an essential aspect of Kennedy’s reasoning, then the opinion is rendered less coherent, emptied of much of its substance, and made vulnerable to critiques from both the right and …
Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus
Yes, Alito, There Is A Right To Privacy: Why The Leaked Dobbs Opinion Is Doctrinally Unsound, Nancy C. Marcus
ConLawNOW
The Essay details how the primary premises underlying the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization regarding abortion rights are infirm as a matter of constitutional doctrine and precedent. It addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion. The draft Dobbs opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, the opinion claims that abortion had not been a recognized enumerated right prior to Roe …
Symposium: Sexual Orientation, Gender Identity & The Constitution: American Constitutions And Artificial Insemination Births, Jeffrey A. Parness
Symposium: Sexual Orientation, Gender Identity & The Constitution: American Constitutions And Artificial Insemination Births, Jeffrey A. Parness
ConLawNOW
Childcare parentage issues arising from assisted reproduction births are subject to constitutional guidance, including due process, equal protection, and privacy dictates. Constitutional rights, however, sometimes go unrecognized in assisted reproduction laws, particularly for same sex couples, wed and unwed, as well as for single women. Upon a brief review of contemporary American state assisted reproduction laws, current and future constitutional precedents are explored. This analysis shows that constitutional, as well as public policy, reforms are particularly needed for same-sex female couples and single women employing assisted reproduction as intended parents.
Symposium: Sexual Orientation, Gender Identity, & The Constitution: Queer Black Trans Politics And Constitutional Originalsim, Marc Spindelman
Symposium: Sexual Orientation, Gender Identity, & The Constitution: Queer Black Trans Politics And Constitutional Originalsim, Marc Spindelman
ConLawNOW
Queer Black trans politics offer an important frame for understanding the current constitutional moment. This is a moment in which the Supreme Court’s newly enthroned constitutional originalist project is taking off in ways that have race, sex, sexuality, and trans equality rights in its sights. Thinking with queer Black trans politics—and, in particular, their demands for intersectionality and for centering Black trans lives—this Essay presents a distinctive topology of LGBTQ rights and their intersections with constitutional race and sex guarantees. It considers how a queer Black trans-focused intersectional thinking plays out, including in the context of reproductive rights, and traces …
Symposium: Sexual Orientation, Gender Identity, & The Constitution: The Precarity Of Justice Kennedy's Queer Canon, Kyle C. Velte
Symposium: Sexual Orientation, Gender Identity, & The Constitution: The Precarity Of Justice Kennedy's Queer Canon, Kyle C. Velte
ConLawNOW
This essay gives a brief overview of the legal and normative of impact of Justice Kennedy’s Queer Canon, a series of four LGBTQ cases written by Justice Kennedy over nearly two decades. The pro-LGBTQ outcomes in the Queer Canon cases made Justice Kennedy a hero to many LGBTQ people. It then explores Justice Kennedy’s fifth, and final, LGBTQ opinion, Masterpiece Cakeshop v. Colorado Civil Rights Commission. That case, which held that a traditional Christian baker would prevail on his First Amendment Free Exercise challenge to a state public accommodations law, was not the finale hoped for by the LGBTQ …
Symposium: Sexual Orientation, Gender Identity, & The Constitution: Business Owners' Religious Objections To Same-Sex Marriage: The American Versus European Perspective, Lenka Křičková
ConLawNOW
This Article focuses on the Lee v. Ashers Baking Company case from the Supreme Court of the United Kingdom, a decision similar to that of the U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Both cases involved bakers whose religious objections to same-sex marriage led them to refuse to sell cakes to gay customers. The Article discusses several common ideas appearing in these cases, mainly the need to distinguish between the message and the messenger when applying antidiscrimination law and the role of fundamental rights in the assessment. Based on this analysis, the Article then suggests …
Symposium: Sexual Orientation, Gender Identity, & The Constitution: Suspect Classifications, Immutability, And Moral Responsibility, Michael Gentithes
Symposium: Sexual Orientation, Gender Identity, & The Constitution: Suspect Classifications, Immutability, And Moral Responsibility, Michael Gentithes
ConLawNOW
This essay argues that when LGBTQ advocates raise equal protection arguments, they should resist the temptation to make immutability claims. Instead, they should acknowledge greater flexibility in the continuum of sexual orientation and gender identity, thereby avoiding traditional and binary immutability theory, and emphasize the lack of moral responsibility as a ground for strict scrutiny. Such arguments offer more traction for future cases rather than repeated efforts to suggest that sexuality is biologically determined or unalterable. This approach shifts the legal focus to the moral responsibility logic that lies behind traditional immutability theory, which may ultimately be more persuasive to …
Symposium: Sexual Orientation, Gender Identity & The Constitution: The Public Accommodations Dilemma - Whose Right Prevails, Meg Penrose
ConLawNOW
This essay gives a brief history of religious liberty-based objections to public accommodations law promoting societal integration and provides a potential solution. It argues there are parallels between LGBTQ discrimination and race discrimination, including the continued resistance to full integration and equality. The essay suggests a potential solution to the public accommodations dilemma between anti-discrimination and religious liberty in redefining the scope of religious liberty. Courts should protect religious services and activities—not secular services and activities. The status (religious or secular) of the person providing services should be irrelevant. The focus of public accommodations laws, and legal challenges to these …
Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes
Concrete Reliance On Stare Decisis In A Post-Dobbs World, Michael Gentithes
Con Law Center Articles and Publications
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will be remembered primarily for its destabilizing effect on abortion rights across the country; in its wake, the legality of abortions performed in various states and at various stages of pregnancy was thrown into turmoil that will take years to resolve. In Dobbs’s immediate aftermath, substantive due process jurisprudence has been at least destabilized, if not prepared for greater limitation in the terms to come. But the Court’s approach to that line of cases has also turned stare decisis doctrine into an unclear jumble that may be considered …
Appealable Tros, Bernadette Bollas Genetin
Appealable Tros, Bernadette Bollas Genetin
Con Law Center Articles and Publications
It’s textbook law that temporary restraining orders (TROs) are not appealable. That bright-line rule, however, has never told the whole story. Today, a majority of circuit courts permit appeal of TROs in narrow instances when, for instance, the TRO has the practical effect of an injunction, threatens serious or irreparable injury, and can only be reviewed effectively by immediate appeal. This accords with the Supreme Court’s conclusion in Carson v. American Brands, Inc., which permitted limited appeal of orders that, like TROs, are not express injunctions but may threaten the same irreparable injury as an injunction. The Carson Court emphasized …