Law Commons^™

Empathy And Reasoning In Context: Thinking About Anti-Gay Bullying, Kris Franklin

Articles & Chapters

“Empathy” has negative connotations for many legal theorists, who may conceive of it as subjective, lacking in intellectual rigor, and emphasizing sensitivity over reason. Even those legal scholars who have embraced the importance of empathy in legal work have emphasized its affective dimensions: pointing out that empathy is central to human relations and motivations, and is therefore a crucial lawyering skill. This paper builds on social science literature that identifies both cognitive and affective dimensions to empathy, and recasts empathy as in part a central component to higher-order thinking in law. It draws examples from empathetic reasoning in foundational cases …

Twu Law: A Reply To Proponents Of Approval, Elaine Craig

Articles, Book Chapters, & Popular Press

Trinity Western University has a Community Covenant that only permits sexual minorities to attend at considerable personal cost to their dignity and sense of self-worth. All student and staff applicants to TWU are required to sign this covenant pledging not to engage in same sex intimacy. On April 11, 2014, the Law Society of British Columbia accredited TWU’s law degree program despite the university’s formal policy of exclusion on the basis of sexual orientation. Later that month, the Law Society of Upper Canada and the Nova Scotia Barristers’ Society refused to approve that same program because of concerns regarding the …

Legal And Ethical Concerns About Sexual Orientation Change Efforts, Tia Powell, Edward Stein

Articles

No abstract provided.

Lgbt Families, Tax Nothings, Anthony C. Infanti

Articles

The federal tax laws have never been friendly territory for LGBT families. Before the enactment of the federal Defense of Marriage Act (DOMA), the federal tax laws turned a blind eye to the existence of LGBT families by tacitly embracing state law discrimination against same-sex couples. When it enacted DOMA in 1996, Congress ensured that it would be able to continue to turn a blind eye to LGBT families even if one or more states were to legally recognize families headed by same-sex couples. In a real sense, LGBT families have been, and continue to be, tax outlaws.

This overt …

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

Articles

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle …

Big (Gay) Love: Has The Irs Legalized Polygamy?, Anthony C. Infanti

Articles

Within days in December, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which …

Online And Onwards: It Gets Better For Gay And Lesbian Media, Marcus O'Donnell

Faculty of Law, Humanities and the Arts - Papers (Archive)

Last week’s announcement that Australia’s oldest and most respected lesbian, gay, bisexual, transgender and intersex (LGBTI) weekly newspaper, Sydney Star Observer (SSO), will change to a monthly print format and a reinvigorated web presence does not come as a surprise given the global state of newspapers.

I edited SSO from 1999 to 2006 and, to me, the shift makes sense. What’s more, the publication’s move online says just as much about the evolution of the LGBTI community as it does about the changing fortunes of print media.

Gay and lesbian media have been one of the essential elements in the …

From Camp To Gay To Queer: David Mcdiarmid And Hiv/Aids Art, Marcus O'Donnell

Faculty of Law, Humanities and the Arts - Papers (Archive)

At the end of July, Melbourne hosted the 20th International AIDS Conference. A huge red AIDS 2014 sign perched on the Swanston Street Bridge between Flinders Street Station and the Melbourne Concert Hall.

The Global AIDS Village was in action at the other end of Southbank with a variety of displays from HIV/AIDS organisations from all over the world. One of the many associated events was the marvellous exhibition of gay artist David McDiarmid’s work, When This You See Remember Me. It is still on display at the National Gallery of Victoria (NGV).

For a brief moment the HIV/AIDS epidemic …

'Baton Bullying': Understanding Multi-Aggressor Rotation In Anti-Harassment Cases, Kris Franklin

Articles & Chapters

Schools are increasingly expected to intervene to prevent the sorts of bullying behavior that can interfere with education. If they do so inadequately, as a number of recent cases show, school districts may be held liable under Title IX for their “deliberate indifference” to harassment that effectively prevents the victim from receiving the benefits of public education. In popular imagination, “bullying” usually consists of one aggressor terrorizing one victim, sometimes with the assistance or tacit approval of other students. But least with respect to the many cases of students being targeted because they were, or were perceived to be, gay, …

Marriage Rights And The Good Life: A Sociological Theory Of Marriage And Constitutional Law, Ari Ezra Waldman

Articles & Chapters

This is the first in a series of three Articles investigating the underappreciated role that the social theory of Emile Durkheim plays in the quest for the freedom to marry for gay Americans. To that end, this Article begins the discussion by examining the Durkheimian legal arguments that go unnoticed in equal protection and due process claims against marriage discrimination. This Article challenges two assumptions: first, that the most effective legal argument for marriage rights is a purely liberal one, and second, that the substance and rhetoric of liberal toleration cannot exist symbiotically in the marriage discrimination debate with a …

The Case For The Federation Of Law Societies Rejecting Trinity Western University's Proposed Law Degree Program, Elaine Craig

Articles, Book Chapters, & Popular Press

Should Canada have a law school that discriminates against gays and lesbians? Would the governing bodies of the legal profession in Canada approve a law school that prohibited mixed race sexual intimacy? Should a self-regulating legal profession require that the policies of the institutions that produce this country's next generation of lawyers respect equality and academic freedom? Trinity Western University (TWU), a private Christian school in British Columbia is posed to become Canada’s first Christian law school. Trinity Western discriminates on the basis of sexual orientation in both its hiring and admissions policies. It has also been found to violate …

The Moonscape Of Tax Equality: Windsor And Behyond, Anthony C. Infanti

Articles

This essay takes a critical look at the tax fallout from the U.S. Supreme Court’s decision in United States v. Windsor, which declared section three of the federal Defense of Marriage Act (DOMA) unconstitutional. The essay is important because, while other federal laws will apply to some same-sex couples some of the time, the federal tax laws are a concern for all same-sex couples all of the time. The essay is timely because it addresses the recently issued IRS guidance regarding the tax treatment of same-sex couples.

In this essay, I first describe the path that led to the decision …

As A Gay Man, I Will Not Be Lectured On Discrimination By Julia Gillard, Marcus O'Donnell

Faculty of Law, Humanities and the Arts - Papers (Archive)

Julia Gillard has had a rough few days. More accurately weeks, well, months. Let’s face it, years. And at the centre of so many of her travails has been debate about her gender. She’s been called a witch, deliberately barren, asked if her partner is gay and been the subject of a “joke” menu where a dish was described, with misogynistic cruelty, in terms of parts of her anatomy.

But for all Gillard’s outrage about the language and attitudes she faces, there’s a rather large elephant siting in her office in The Lodge which she seems to determined to ignore: …

Obama Inauguration Speech: A Historic Moment For Gay And Lesbian Equality, Marcus O'Donnell

Faculty of Law, Humanities and the Arts - Papers (Archive)

Much has been made of the fact President Obama became the first president to mention the word gay in an inaugural address.

But the significance lies not in what he said but how he said it.

In declaring, “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law” Obama not only declared himself abstractly for “gay rights”, he placed these rights at the heart of the central ideals of the American story.

Obama’s whole speech sprung from his reiteration of the much sung hymn to equality from the Declaration of Independence …

Civil Rights Reform And The Body, Tobias Barrington Wolff

All Faculty Scholarship

Discrimination on the basis of gender identity or expression has emerged as a major focus of civil rights reform. Opponents of these reforms have structured their opposition around one dominant image: the bathroom. With striking consistency, opponents have invoked anxiety over the bathroom -- who uses bathrooms, what happens in bathrooms, and what traumas one might experience while occupying a bathroom -- as the reason to permit discrimination in the workplace, housing, and places of public accommodation. This rhetoric of the bathroom in the debate over gender-identity protections seeks to exploit an underlying anxiety that has played a role in …

Collegiality And Individual Dignity, Tobias Barrington Wolff

All Faculty Scholarship

This Essay identifies and describes the tension between the norms of collegiality and basic principles of individual dignity that LGBT scholars and lawyers encounter when confronted with the dehumanizing arguments that are regularly advanced by opponents of equal treatment under law for lesbian, gay, bisexual and transgender people. It is a transcript of remarks delivered at a March 2012 symposium on the Defense of Marriage Act at Fordham Law School, with minimal edits for publication.

Gender & Sexuality In The Aba Standards On The Treatment Of Prisoners, Margaret Colgate Love, Giovanna Shay

Faculty Scholarship

Over the past three decades, commentators, advocates, and corrections experts have focused increasingly on issues of gender and sexuality in prison. This is due in part to the growing number of women in a generally burgeoning American prison population. It is also attributable to efforts to end custodial sexual abuse and prison sexual violence, which have focused attention on issues relating to women and LGBT prisoners. Also, in part, this heightened attention reflects the influence of growing free-world social movements emphasizing the "intersectionality" of multiple forms of subordination and seeking to secure fair treatment of gay and transgender people.

This …

Commentary, Considering Lesbian, Gay, Transgender, And Bisexual Nominees For The Federal Courts, Carl W. Tobias

Law Faculty Publications

Professor Tobias details the ultimately unsuccessful nomination of Edward DuMont to the United States Court of Appeals for the Federal Circuit in 2010-11 to illustrate the obstacles encountered by LGBT individuals in the federal judicial selection process.

Dealing With Doma: Federal Non-Recognition Complicates State Income Taxation Of Same-Sex Relationships, Carlton M. Smith, Edward Stein

Articles

Various states now recognize relationships between people of the same-sex, but due to the Defense of Marriage Act, the federal government does not. In the context of income taxes, this combination of state recognition and federal non-recognition of same-sex relationships produces a significant problem for many same-sex couples and some state taxing authorities. Most states have income tax and, typically, state income tax laws “piggyback” on federal income tax laws. Depending on the state, same-sex couples in legally-recognized relationships must file their state income tax returns as married (either “filing jointly” or “filing separately”), as domestic partners, or as parties …

Lgbt Taxpayers: A Collision Of 'Others', Anthony C. Infanti

Articles

In this essay prepared for a symposium on the intersection of tax law with gender and sexuality, I explore the violent collision of these two concepts - or, more appropriately, these two “others.” I begin my exploration of this collision of “others” by first explaining how the lesbian, gay, bisexual, and transgender (LGBT) community is a marginalized “other” in American society while, in contrast, tax is a privileged “other” in the realm of American law. Then, I turn to a close examination of a recent case, O’Donnabhain v. Commissioner, to illustrate the collision of the otherness of LGBT individuals with …

Fear Of The Queer Child, Clifford Rosky

Utah Law Faculty Scholarship

This article is about the fear of the queer child — the fear that exposing children to homosexuality and gender variance makes them more likely to develop homosexual desires, engage in homosexual acts, deviate from traditional gender norms, or identify as lesbian, gay, bisexual, or transgender. This fear is thousands of years old, but it has undergone a remarkable transformation in the last half-century, in response to the rise of the LGBT movement. For centuries, the fear had been articulated specifically in sexual terms, as a belief that children would be seduced into queerness by adults. Since the 1970s, it …

Queer Cases Make Bad Law, James C. Hathaway, Jason Pobjoy

Articles

The Refugee Convention, now adopted by 147 states, is the primary instrument governing refugee status under international law. The Convention sets a binding and nonamendable definition of which persons are entitled to recognition as refugees, and thus to enjoy the surrogate or substitute national protection of an asylum state. The core of the article 1A(2) definition provides that a refugee is a person who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group.” A person is thus a refugee, and entitled to the non-refoulement and other protections …

Dismembering Families, Anthony C. Infanti

Book Chapters

In this paper, I explore how the deduction for extraordinary medical expenses, codified in I.R.C. section 213, furthers domination in American society. On its face, section 213 probably does not seem a likely candidate for being tagged as furthering domination. After all, this provision aims to alleviate extraordinary financial burdens on taxpayers who already suffer from significant medical problems -- and who, by definition, lack the help of insurance to relieve those burdens. But, as laudable as this goal might be, careful attention to the text and context of section 213 reveals that it does not apply to all taxpayers …

What Did Jesus Do: Answering Religious Conservatives Who Oppose Bullying Prevention Legislation, Daniel B. Weddle, Kathryn E. New

Faculty Works

Conservative Christian organizations assert that anti-bullying programs are a stealth effort by gay activists to introduce into American schools an aggressive lesbian, gay, bisexual, transgender (LGBT) agenda. They contend that legislation and bullying prevention programs that mention gays are an attempt to indoctrinate children to embrace homosexual lifestyles; tolerate homosexual behavior; and celebrate homosexuality, bisexuality, and transgender identity. These voices are having an impact on state legislatures and the damage is immense. Educational research has made clear the devastating effects of bullying upon children, and LGBT students are among the most often targeted and least protected students. Given that schools …

The Synergistic Evolution Of Liberty And Equality In The Marriage Cases Brought By Same-Sex Couples In State Courts, Jean C. Love

Faculty Publications

Legal scholars have expressed varying views about the roles of liberty and equality in the area of lesbian and gay rights. Some have encouraged gay rights litigators to stress one form of argument over the other. At least one commentator, Pamela Karlan, has suggested that looking at the issue through the lenses of both the due process clause and the equal protection clause simultaneously can have synergistic effects, producing results that neither clause might reach by itself. This article examines selected marriage cases brought by same-sex couples in state courts in order to understand the role played by liberty and …

Theories Of Discrimination & Gay Marriage, Adam Farra

Maryland Law Review Online

No abstract provided.

Rethinking Tax Priorities: Marriage Neutrality, Children, And Contemporary Families, James M. Puckett

Journal Articles

Tax scholarship has long struggled with whether married taxpayers should be taxed differently from unmarried taxpayers. Currently, married taxpayers are subject to different tax rates than unmarried taxpayers, and may file a joint tax return. A married couple may pay a higher or lower amount of tax than an unmarried couple with the same total income, and a single person generally pays more tax on a given income than a married couple with a single earner with the same income. These outcomes are difficult to reconcile with a commitment to income tax progressivity, which in theory requires that higher incomes …

All In The Family, Angela Onwuachi-Willig, Jacob Willig-Onwuachi

Faculty Scholarship

Your essay “Pregnant Man?” highlights many significant issues concerning the intersection of law, gender, sexuality, race, class, and family. In an earlier article A House Divided: The Invisibility of the Multiracial Family, we explored many of these issues as they relate to multiracial families, including our own. Specifically, we, a black female-white male married couple, analyzed the language in housing discrimination statutes to demonstrate how law and society function together to frame the normative ideal of family as heterosexual and monoracial. Our article examined the daily social privileges of monoracial, heterosexual couples as a means of revealing the invisibility of …

The So-Called Right To Privacy, Jamal Greene

Faculty Scholarship

The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the "so-called" right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its …

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 …