Law Commons^™

Afterword – Straightness As Property: Back To The Future-Law And Status In The 21st Century, Symposium: Liberalism And Property Rights, Berta E. Hernández-Truyol, Shelbi D. Day

Berta E. Hernández-Truyol

As is evident from the other works in this Symposium, throughout history in both the United States and the greater Western World, status-based exclusion of individuals and groups from property rights has been central to the existence of political and social hierarchies. Specifically, exclusion based on status — whether it be nationality, culture, race, sex or sexuality — has plagued our history and has been integral in the formation and development of both constitutional and property law regimes. Consequently, both regimes are at best uneven in the grant and distribution of rights and benefits. A forward-looking examination of the link …

Same-Sex Marriage And Jewish Law: Time For A New Paradigm?, Doron M. Kalir

Doron M Kalir

In recent years the Supreme Court, as well as important segments of society, has come to accept and even celebrate same-sex relations that in the past, and for some still today, have generated contempt, hostility, and violence. This change in law and culture poses a unique challenge for those who are moved by the plight of gay people yet concomitantly feel bound by their religious convictions and therefore prevented from providing religious legitimacy to people who yearn to be part of their community. Professor Kalir meets this challenge by proposing that the Torah (and Jewish law), read in context, accepts …

Racing The Closet, Russell K. Robinson

Russell K Robinson

No abstract provided.

Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres

Susan Ayres

In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription …

Some Thoughts On The Conduct/Status Distinction, Sherry F. Colb

Sherry Colb

No abstract provided.

India: Supreme Court Recriminalises "Carnal Intercourse Against The Order Of Nature", Shubhankar Dam

Shubhankar Dam

See No Evil, Hear No Evil, Speak No Evil; Stemming The Tide Of No Promo Homo Laws In American Schools, Madelyn Rodriguez

Madelyn Rodriguez

In several states, and many more local governments, teachers are being mandated to teach their students that homosexuality is inherently abhorrent and should be shunned. These so called “No Promo Homo” policies vary in scope; from those barring any positive discussion of homosexuality to those which insinuate the association of homosexuality with various social ills. As a result of these policies, teachers are being used as a conduit for misinformation and, more disturbingly, for discrimination and bias. Because teachers naturally have an immense impact on their students, the concepts and values advocated or discouraged by them will have an immeasurable …

Representing Identities: Legal Treatment Of Pregnancy And Homosexuality, Dan Danielsen

Dan Danielsen

This article explores some of the ways in which judges treat pregnancy and homosexuality in discrimination cases. In examining some of these cases, I map some of the doctrinal maneuvers and political strategies which courts employ in representing these traits, and explicate some of the images of gender or sexual identity which the judicial opinions contain. My sense is that looking critically and systematically at the complex and multiple modes in which judges represent pregnancy and homosexuality may improve our capacity for understanding for legal doctrine's potential to embody richer and more satisfying conceptions of selves or identities.

Modern Marriage And Judgmental Liberalism: A Reply To George, Girgis, And Anderson, Matthew L. Clemente

Matthew L. Clemente

State by state, cantankerous debates about same-sex marriage continue to capture headlines. The outcome of these debates has not only changed the political landscape in United States but has also impacted public policy and legal theory. However, the same-sex marriage debate raises a more fundamental philosophical question—why is the state involved in marriage in the first place? I argue that the best answer to this question is that marriage plays a vital role in modern Western democracies. The right of marriage stems from its social function of habituating the character traits that are essential to effective democratic citizenship.

The standard …

“Gen Silent”: Advocating For Lgbt Elders, Nancy J. Knauer

Nancy J. Knauer

This article provides a general introduction to the specific challenges facing LGBT elders. In addition to the general burdens of aging, LGBT elders are disadvantaged by a number of LGBT-specific concerns, most notably: the legal fragility of their support systems, high levels of financial insecurity compounded by ineligibility for spousal benefits, and the continued prevalence of anti-LGBT bias on the part of their non-LGBT peers and service providers. Part I outlines the ways in which LGBT elders differ from their non-LGBT peers in terms of demographics and their reliance on “chosen family,” as well as some of the particular issues …

Common Law Same-Sex Marriage, Peter Nicolas

Peter Nicolas

In this manuscript, I demonstrate that, with the extension of the right to marry to same-sex couples in Iowa, the District of Columbia, and New Hampshire (all states that recognize common law marriage), there now exists the possibility that—for the first time in the United States—a same-sex couple may enter into a legally recognized common law marriage.

In the manuscript, I first show, as a doctrinal matter, that same-sex couples have the right to enter into common law marriages in each of these jurisdictions, and I explain and compare the criteria for entering into common law marriages in each of …

Gay And Lesbian Elders: Estate Planning And End-Of-Life Decisionmaking, Nancy J. Knauer

Nancy J. Knauer

This Article addresses the three areas of core concern for gay and lesbian elders -- chosen family, financial insecurity, and anti-gay bias in the context of estate planning. The first section provides an overview of the current generation of gay and lesbian elders, including a summary of pre-Stonewall history and existing demographic information. The second section outlines the challenges associated with drafting an estate plan that favors chosen family over next of kin. The third section engages the topic of financial insecurity, discussing various benefits and government programs, such as social security and Medicaid planning. The fourth and final section …

Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer

Nancy J. Knauer

The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views …

A Jurisprudence Of Dogmatism: Religion, Rationality And The Case For Homosexual Rights, Dylan Zorea

dylan zorea

I contend that arguments derived from religious beliefs are incompatible with Constitutional jurisprudence because such views are generally irrational, and consequently, judicially incontestable. Yet, due to the significance of religion in the lives of many citizens, such arguments have continually intruded into matters of law and public policy. This has been the case particularly regarding the issue of homosexual rights, where a religiously grounded animus has made it difficult for gay and lesbian persons to enjoy the full protection of law. Because religious arguments cannot be rationally justified they must be excluded from judicial analysis. I will further argue that …

Theorizing And Litigating The Rights Of Sexual Minorities, Nancy Levit

Nancy Levit

One of the best measures of a society is how it treats its vulnerable groups. A central idea in Professor Martha Nussbaum's writings is that all humans "are of equal dignity and worth, no matter where they are situated in society." The strategic challenge in lesbian, gay, bisexual and transgendered (LGBT) rights litigation is how to get courts to see sexual minorities as people worthy of equal dignity and respect. This article focuses on the roles of a positive emotion - love - and a procedural method of proof - science - in the shaping of laws defining the rights …

Chaos, Law, And God: The Religious Meanings Of Homosexuality, Jay Michaelson

Jay Michaelson

What is the meaning of gay rights in contemporary religious-political discourse? Though some explain homosexuality's disproportionate prominence in terms of homophobia, "church and state," or traditional values versus progressive ones, this article suggests that the legal regulation of sexuality has a far deeper, and more specific, religious meaning: sexuality is a primary site in which religious law is engendered, where the lawfulness of religion meets the chaos beyond it. Arguments about gay rights, same-sex marriage, and related issues are not merely arguments informed by religious values; they are arguments about the nature of religion itself. The article begins by providing …

Statute Of Liberty?, Emily A. Harrell

Emily A Harrell

This essay presents a brief overview of the United States’ immigration policy with respect to sponsorship laws, as well as a brief introduction to the Federal Defense of Marriage Act (DOMA) and how it has affected these laws. This essay also illustrates the extent of judicial deference toward Congress in the realm of immigration. Following this introductory material, there is a discussion of the traditional and modern view of homosexuals as pertains to immigration law. Aside from an analysis of the sponsorship laws, this essay also glances at the exigent circumstances that create loopholes for homosexuals in immigration law, such …

The Cultural Property Claim Within The Same Sex Marriage Controversy, Marc R. Poirier

Marc R. Poirier

The Cultural Property Claim within the Same Sex Marriage Controversy.

Marc R. Poirier, Seton Hall University School of Law

This article argues that traditionalist opposition to same sex marriage can be understood as a cultural property claim -- the sort of claim that is often made by Native American tribes and other subordinated cultural groups of a right to control the uses of sacred or culturally central rituals, places and objects. Ultimately, it disagrees with the traditionalist position, and argues that traditionalists should not be allowed to maintain a property-like right to exclude same sex couples from marriage. Nevertheless, the …

The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer

Nancy J. Knauer

The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites …

A Marriage Skeptic Responds To The Pro-Marriage Proposals To Abolish Civil Marriage, Nancy J. Knauer

Nancy J. Knauer

This essay responds to the pro-marriage proposals to abolish civil marriage presented by Professors Crane and Zelinsky. As a marriage skeptic, I do not share their unwavering support of marriage, but there are numerous points of agreement. I agree with Professor Zelinsky that a vision of a world without civil marriage is an important metric against which to evaluate public policy proposals. In addition, I find quite compelling the notion that a private deregulated marriage regime would promote a more mindful partnership where expectations were express, responsibilities were clear, and the terms were tailor-made for the particular couple. Finally, I …

September 11 Relief Efforts And Surviving Same-Sex Partners: Reflections On Relationships In The Absence Of Legal Recognition, Nancy J. Knauer

Nancy J. Knauer

The criteria established by federal, state, and private relief efforts to assist the families of the victims of the September 11 attacks present a unique opportunity to examine the status of same-sex relationships in the United States. In the absence of uniform relationship recognition, surviving same-sex partners continue to struggle with a loss that legally is not cognizable. The stories from the September 11 survivors illustrate that a surviving partner is a legal stranger, who often must reconfigure her relationship with her partner to fit within the various legal categories where relief or compensation might be forthcoming. These legal categories …

Sexually Expressive Materials For Gay Men: Sex Discrimination Or Subversive Potential?, Donn Short

Donn Short

This article reviews Christopher N. Kendall's book Gay Male Pornography: An Issue of Sex Discrimination. In particular, this article focuses on the analysis of the Little Sisters case and the harms-based test articulated in the Butler decision. Kendall's book explains his position that gay male pornography is a problem of sex discrimination, and the harm of gay pronography is not propertly understood under current theoretical models. Short challenges Kendall's assessment of gay male pornography.

Science, Identity, And The Construction Of The Gay Political Narrative, Nancy J. Knauer

Nancy J. Knauer

This Article contends that the current debate over gay civil rights is, at base, a dispute over the nature of same-sex desire. Pro-gay forces advocate an ethnic or identity model of homosexuality based on the conviction that sexual orientation is an immutable, unchosen, and benign characteristic. The assertion that, in essence, gays are "born that way," has produced a gay political narrative that rests on claims of shared identity (i.e., homosexuals are a blameless minority) and arguments of equivalence (i.e., as a blameless minority, homosexuals deserve equal treatment and protection against discrimination). The pro-family counter-narrative is based on a behavioral …

Homosexuality As Contagion: From The Well Of Loneliness To The Boy Scouts, Nancy J. Knauer

Nancy J. Knauer

In the political arena, there are currently two central and competing views of homosexuality. Pro-family organizations, working from a contagion model of homosexuality, contend that homosexuality is an immoral, unhealthy, and freely chosen vice. Many pro-gay organizations espouse an identity model of homosexuality under which sexual orientation is an immutable, unchosen, and benign characteristic. Both pro-family and pro-gay organizations believe that to define homosexuality is to control its legal and political status. This sometimes bitter debate regarding the nature of same-sex desire might seem like an exceedingly contemporary development. However, the ex-gay media blitz of 2000 represents only the latest …

"Franco's Spain, Queer Nation?", Gema Pérez-Sánchez

Gema Pérez-Sánchez

This Article discusses how, through its juridical apparatus, the Spanish dictatorship of Francisco Franco sought to define and to contain homosexuality, followed by examples of how underground queer activism contested homophobic laws. ... Part III illustrates the social and cultural legacy of queer activism against Francoist laws on homosexuality through an analysis of Eduardo Mendicutti's novel Una mala noche la tiene cualquiera Anyone Can Have A Bad Night and the young, urban culture, post-Franco context of supposed historical amnesia in which it was produced. ... As the power of Francoism and its institutions waned during the last years of the …

Domestic Partnership And Same-Sex Relationships: A Marketplace Innovation And A Less Than Perfect Institutional Choice, Nancy J. Knauer

Nancy J. Knauer

The struggle for the recognition and protection of same-sex relationships is at the forefront of the contemporary gay and lesbian civil rights agenda. Whereas the push for same-sex marriage and parenting rights has met with mixed results in the courts and the legislatures, an impressive array of organizations, including Fortune 500 companies, colleges, nonprofit corporations, and municipalities, now extend benefits to the same-sex partners of their employees. This level of success raises a provocative question regarding the potential role of institutional employers in the larger on the agenda for progressive social change. Domestic partnership benefits are a creature of the …