Law Commons^™

Bostock And Contact Theory: How Will A Single U.S. Supreme Court Decision Reduce Prejudice Against Lgbtq People?, Mantas Grigorovicius

Indiana Law Journal

In 1954, Gordon Allport, one of the nation’s leading social psychologists, laid out a hypothesis explaining how prejudice could be reduced by intergroup contact. Decades later, his hypothesis became a theory with thousands of research hours behind it. Under contact theory, one of the factors that facilitates a reduction in prejudice between two groups is support of authorities or law. This Comment focuses on Bostock v. Clayton County, a recent Supreme Court decision holding that Title VII prohibits discrimination based on sexual orientation. Allport suggested that antidiscrimination laws help to “lead and guide the folkways,” and this Comment explores how …

Sexual Harassment: A Doctrinal Examination Of The Law, An Empirical Examination Of Employer Liability, And A Question About Ndas— Because Complex Problems Do Not Have Simple Solutions, Michael Heise, David S. Sherwyn

Indiana Law Journal

The #MeToo movement casts critical light on the pervasive nature of sexual harassment, particularly in the employment context, and continues to motivate a number of initiatives that address important social and workplace ills. The problems this movement has uncovered, however, run much deeper and likely exceed the scope and capacity of many of the proposed “fixes” it has inspired. Worse still, however, is that some of the proposed fixes may prove counterproductive. This Article examines the history and development of the relevant employment laws, empirically assesses judicial holdings on the employers’ affirmative defense to liability, and argues that many employees …

Revenge Porn And The Aclu’S Inconsistent Approach, Elena Lentz

Indiana Journal of Law and Social Equality

No abstract provided.

Title Vii And The Unenvisaged Case: Is Anti-Lgbtq Discrimination Unlawful Sex Discrimination, Ronald Turner

Indiana Law Journal

As discussed herein, courts and individual judges recognizing or not finding actionable Title VII anti-LGBTQ14 claims have offered different rationales in support of their conflicting positions, including three justifications discussed in this project: (1) the meaning of Title VII’s “because of sex” prohibition, (2) the Supreme Court’s and circuit courts’ construction of the “because of sex” provision in the context of sex stereotyping and gender nonconformity discrimination as applied to the anti- LGBTQ question, and (3) associational discrimination theory. Claim-recognizing jurists have looked to Title VII’s text, Supreme Court and circuit court precedent, and the views of the Equal Employment …

Addressing The High School Sexual Assault Epidemic: Preventive And Responsive Solutions, Carolyn Haney

Indiana Journal of Law and Social Equality

No abstract provided.

We Are All Farkhunda: An Examination Of The Treatment Of Women Within Afghanistan's Formal Legal System, Ashley Lenderman

Indiana Journal of Constitutional Design

In this paper, I will examine three cases of violence against women that went through the Afghan formal legal system: the case of Farkhunda, the Paghman district gang rape case, and the case of Sahar Gul. In the first Part, I will discuss the formal legal system framework on which the cases are based. In the second Part, I will discuss the cases in detail. In the third Part, I will describe neo-liberal, reformist, and neo-fundamentalist approaches to interpretation of Islamic law, and I will then draw out pieces of the decisions from the three cases that closely match these …

Legitimacy And Protection Against Sexual Orientation Discrimination Under Title Vii, Matt Snodgrass

Indiana Law Journal

Until relatively recently federal courts have held that claims of discrimination based in sexual orientation fall beyond the purview of Title VII protection. Even after the landmark holding in Price Waterhouse that recognized discrimination based in sex stereotypes and subsequent amendment to Title VII, courts resisted “bootstrapping” sexual orientation claims with sex discrimination claims. The result has been a number of puzzling outcomes—for example, extending Title VII protection to gay men who received adverse employment treatment due to stereotypically “effeminate” mannerism but not to gay men who meet cultural standards of masculinity— rigidly applying the structure of protected categories in …

Personhood Seeking New Life With Republican Control, Jonathan F. Will, I. Glenn Cohen, Eli Y. Adashi

Indiana Law Journal

Just three days prior to the inauguration of Donald J. Trump as President of the United States, Representative Jody B. Hice (R-GA) introduced the Sanctity of Human Life Act (H.R. 586), which, if enacted, would provide that the rights associated with legal personhood begin at fertilization. Then, in October 2017, the Department of Health and Human Services released its draft strategic plan, which identifies a core policy of protecting Americans at every stage of life, beginning at conception. While often touted as a means to outlaw abortion, protecting the “lives” of single-celled zygotes may also have implications for the practice …

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 …

A Diachronic Approach To Bob Jones: Religious Tax Exemptions After Obergefell, Samuel D. Brunson, David J. Herzig

Indiana Law Journal

In Bob Jones University v. United States, the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex in-dividuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the re-cent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of …

Courage, Postimmunity Politics, And The Regulation Of The Queer Subject, Chantal Nadeau

Indiana Journal of Global Legal Studies

In this paper, I argue that courage is invoked in contemporary political discourses in such a way as to regulate queer legal subjectivities. That is, the discourses of courage re-articulate the social, legal, and political relations that define and restrict the lives of lesbian, gay, bisexual, and transgender (LGBT) citizens. Drawing on Roberto Esposito's theoretical elaboration of the concept of immunity, I remap the legal and political dynamics through which nations incorporate LGBT citizens into the polity. I discuss how the regulation of gay rights in a growing number of democracies in Europe, the Americas, and South Africa has contributed …

Rfras And Reasonableness, Steve Sanders

Indiana Law Journal

The organized opponents of legal and social equality for gays and lesbians, particularly the foes of marriage for same-sex couples, have coalesced in recent years around the rallying cry of "religious liberty." In 2015, the conflict between LGBT rights and religious liberty intensified as legislators in seventeen states considered adopting Religious Freedom Restoration Acts (RFRAs). Most of the national attention focused on Indiana, where legislators adopted a RFRA under pressure from religious conservatives, only to later amend it under pressure from business and civic leaders over concerns that the law sent a message endorsing anti-gay discrimination.

RFRAs, which typically require …

Why The State Cannot “Abolish Marriage”: A Partial Defense Of Legal Marriage, Gregg P. Strauss

Indiana Law Journal

Does a liberal state have a legitimate interest in defining the terms of intimate relationships? Recently, several scholars have answered this question with a no and concluded that the state should abolish marriage, along with all other categories of intimate status. While politically infeasible, these proposals offer a powerful thought experiment. In this Article, I use this thought experiment to argue that the law cannot avoid relying on intimate-status norms and has legitimate reasons to retain an intimate status like marriage.

The argument has three parts. The primary lesson of the thought experiment is that the state cannot abolish intimate …

Baker V. Nelson: Flotsam In The Tidal Wave Of Windsor's Wake, David B. Cruz

Indiana Journal of Law and Social Equality

Part I of this Article sketches the virtually unbroken string of pro-marriage decisions in the lower federal and state courts since the U.S. Supreme Court’s 2013 ruling in United States v. Windsor to give a sense of the size and magnitude of this “tidal wave” of precedent. Next, Part II briefly explores some of the reasons that might help account for the flood of litigation and overwhelmingly positive outcomes. Part III tentatively suggests one way this flow of decisions in favor of marriage equality might influence the Supreme Court as it returns to the issue. Part II then at some …

A Marriage By Any Other Name: Why Civil Unions Should Receive Federal Recognition, Deborah A. Widiss, Andrew Koppelman

Indiana Journal of Law and Social Equality

The federal government now recognizes same-sex marriages as triggering rights and responsibilities under federal law. However, it still generally refuses to recognize alternative legal statuses—civil unions and domestic partnerships—that were created by states to serve as functional marriages. Even though all the states that created such alternative statuses now permit same-sex couples to marry, this misguided policy causes ongoing harms. Some same-sex couples who entered into alternative relationships when marriage was not an option may now lack the capacity to marry. Couples who have since married may also be hurt by the federal government’s refusal to recognize civil unions or …

Thrown Away For Being Gay: The Abandonment Of Lgbt Youth And Their Lack Of Legal Recourse, Caitlin "Casey" Judge

Indiana Journal of Law and Social Equality

One of the most pervasive risks LGBT youth face today is the threat of being thrown out of their homes because of their sexual orientation. According to a Massachusetts Youth Risk Behavior Survey, one in four teens that identify as lesbian or gay are homeless. Of the estimated 575,000 to 2.8 million youth that are homeless each year, between 20 percent and 40 percent identify as LGBT. While youth homelessness is most often attributed to neglect, family tragedy, poverty, and addiction, most LGBT youth populations attribute their homelessness directly to their sexual orientation. This suggests that these parents and families …

Duty To Defend And The Rule Of Law, Gregory F. Zoeller

Indiana Law Journal

This Article challenges Eric Holder’s and William Pryor’s views and explains the proper role of a state attorney general when a party challenges a state statute. In short, an attorney general owes the state and its citizens, as sovereign, a duty to defend its statutes against constitutional attack except when controlling precedent so overwhelmingly shows that the statute is unconstitutional that no good-faith argument can be made in its defense. To exercise discretion more broadly, and selectively to pick and choose which statutes to defend, only erodes the rule of law. (introduction)

The Limits Of Child Pornography, Carissa Byrne Hessick

Indiana Law Journal

Although the First Amendment ordinarily protects the creation, distribution, and possession of visual images, the Supreme Court has declared that those protections do not apply to child pornography. But the Court has failed to clearly define child pornography as a category of speech. Providing a precise definition of the child pornography exception to the First Amendment has become increasingly important because recent years have seen a dramatic increase in the penalties associated with the creation, distribution, and possession of child pornography.

This Article proposes a clear definition of the child pornography exception. It argues that an image ought to fall …

Removing Disfavored Faces From Facebook: The Freedom Of Speech Implications Of Banning Sex Offenders From Social Media, John Hitz

Indiana Law Journal

This Note scrutinizes the constitutionality of statutes that ban sex offenders who are no longer under any form of probation, parole, or supervised release from using social media. This Note argues that the incarnations of three of the social media ban statutes that have been examined by the federal judiciary were properly found unconstitutional because they violate the free speech rights of the sex offenders that they ban from social media. This Note goes on to argue that states can secure the interests they were seeking to protect in adopting these statutes through other means.

ng what groups of individuals …

Doctoring Discrimination In The Same-Sex Marriage Debates, Elizabeth Sepper

Indiana Law Journal

As the legalization of same-sex marriage spreads across the states, some religious believers refuse to serve same-sex married couples. In the academy, a group of law and religion scholars frames these refusals as “conscientious objection” to the act of marriage. They propose “marriage conscience protection” that would allow public employees and private individuals or businesses to refuse to “facilitate” same-sex marriages. They rely on the theoretical premise that commercial actors’ objections to marriage are equivalent to doctors’ objections to controversial medical procedures. They model their proposal on medical conscience legislation, which allows doctors to refuse to perform abortions. Such legislation, …

Introduction: Invited Essays On The Implications Of Windsor And Perry

Indiana Law Journal

No abstract provided.

Standing To Appeal And Executive Non-Defense Of Federal Law After The Marriage Cases, Ryan W. Scott

Indiana Law Journal

Essays on the Implications of Windsor and Perry

Is The Full Faith And Credit Clause Still "Irrelevant" To Same-Sex Marriage?: Toward A Reconsideration Of The Conventional Wisdom, Steve Sanders

Indiana Law Journal

Essays on the Implications of Windsor and Perry

Leveling Up After Doma, Deborah A. Widiss

Indiana Law Journal

Essays on the Implication of Windsor and Perry

Windsor, Shelby County, And The Demise Of Originalism: A Personal Account, Dawn E. Johnsen

Indiana Law Journal

Essays on the Implication of Windsor and Perry

Evolving Values, Animus, And Same-Sex Marriage, Daniel O. Conkle

Indiana Law Journal

In this Essay, I contend that a Fourteenth Amendment right to same-sex marriage will emerge, and properly so, when the Supreme Court determines that justice so requires and when, in the words of Professor Alexander Bickel, the Court’s recognition of this right will “in a rather immediate foreseeable future . . . gain general assent.” I suggest that we are fast approaching that juncture, and I go on to analyze three possible justifications for such a ruling: first, substantive due process; second, heightened scrutiny equal protection; and third, rational basis equal protection coupled with a finding of illicit “animus.” I …

"Don't Ask, Don't Tell," The Supreme Court, And Lawrence The "Laggard", Audrey K. Hagedorn

Indiana Law Journal

No abstract provided.

The Paradox Of Statutory Rape, Russell L. Christopher, Kathryn H. Christopher

Indiana Law Journal

What once protected only virginal girls under the age of ten now also protects sexually aggressive males under the age of eighteen. While thirteenth-century statutory rape law had little reason to address the unthinkable possibility of chaste nine-year-old girls raping adult men, twenty-first-century statutory rape law has failed to address the modern reality of distinctly unchaste seventeen-year-old males raping adult women. Despite dramatically expanding statutory rape’s protected class, the minimalist thirteenth-century conception of the offense remains largely unchanged—intercourse with a juvenile. Overlooked is the new effect of this centuries-old offense—a sexually aggressive seventeen-year-old raping an adult now exposes the adult …

Between Victim And Agent: A Third-Way Feminist Account Of Trafficking For Sex Work, Shelley Cavalieri

Indiana Law Journal

Feminist legal theorists have devoted enormous attention to conceptualizing the issues of sex work and trafficking for sexual purposes. While these theories vary, they typically fall into one of two camps. The abolitionist perspective, having grown out of dominance feminist theory, perceives sex work as inherently exploitative. In contrast, a second group of theorists adopts a liberal notion of individual choice and draws on the poststructuralist rejection of gender essentialism to envision a theoretical model of sex-worker rights. The legal and public policies that grow from these two models are similarly polarized. Radical feminist abolitionists are often strange bedfellows with …

Resolving Conflicts Of Constitution: Inside The Dominican Republic's Constitutional Ban On Abortion, Mia So

Indiana Law Journal

No abstract provided.