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Articles 1 - 20 of 20
Full-Text Articles in Law
The Centennial Of Meyer And Pierce: Parents’ Rights, Gender-Affirming Care, And Issues In Education, Ira C. Lupu
The Centennial Of Meyer And Pierce: Parents’ Rights, Gender-Affirming Care, And Issues In Education, Ira C. Lupu
GW Law Faculty Publications & Other Works
This paper was prepared for a Symposium marking the centennial of the Supreme Court’s decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). At their inception, Meyer and Pierce reflected constitutional principles of economic freedom and parental control of their children’s education. Part I traces the path of ideas put in motion by Meyer and Pierce. These include the decline of their economic freedom component and the broader grounding of their doctrines of parental authority. Eventually, the legacy of Meyer and Pierce expanded to include First Amendment concerns of religious exercise and knowledge acquisition; Fourteenth Amendment …
Colonizing Queerness, Jeremiah A. Ho
Colonizing Queerness, Jeremiah A. Ho
All Faculty Scholarship
This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives …
Are Threats To Impose Financial Sanctions An Effective Approach For The United States To Protect Lgbtq Rights In Africa?, Ryan J. Mcelhose
Are Threats To Impose Financial Sanctions An Effective Approach For The United States To Protect Lgbtq Rights In Africa?, Ryan J. Mcelhose
Emory International Law Review Recent Developments
No abstract provided.
The Equal Rights Amendment And Lgbtq Rights, Including Marriage Equality, Center For Gender And Sexuality Law
The Equal Rights Amendment And Lgbtq Rights, Including Marriage Equality, Center For Gender And Sexuality Law
Center for Gender & Sexuality Law
Below, we provide an analysis of the potential for the Equal Rights Amendment (ERA) to strengthen protections for LGBTQ rights, including marriage equality. Currently pending before the U.S. Senate is a resolution that would lift any congressionally imposed deadline for final ratification of the ERA. Lifting that deadline would remove the last legal impediment to adding the ERA to the Constitution, which would then constitutionalize, and thus secure, rights currently enjoyed by LGBTQ people that are vulnerable to reversal by the Supreme Court in a future case.
Achieving Equality Without A Constitution: Lessons From Israel For Queer Family Law, Laura T. Kessler
Achieving Equality Without A Constitution: Lessons From Israel For Queer Family Law, Laura T. Kessler
Utah Law Faculty Scholarship
How might the United States reconcile conflicts between equality and religious freedom in the realm of family law? To answer this question, this chapter considers recent developments in family (personal status) law in Israel. While Israel may at first blush appear to be the last place that feminists and queer theorists should look for solutions to modern conflicts between democratic and religious values, this chapter argues that the Israeli experience has much to offer critical family scholars working to develop pluralistic legal approaches to family regulation. Israel is a country with a diverse population and unique political and legal context …
Bigotry, Prophecy, Religion, And The Race Analogy In Marriage And Civil Rights Battles: Responding To Commentaries On Who's The Bigot?, Linda C. Mcclain
Bigotry, Prophecy, Religion, And The Race Analogy In Marriage And Civil Rights Battles: Responding To Commentaries On Who's The Bigot?, Linda C. Mcclain
Faculty Scholarship
One of the most rewarding parts of writing a book is that it opens the door for constructive conversation with thoughtful and perceptive readers like the scholars who generously contributed to this book symposium. Their various essays touch on and offer powerful insights about the core concerns that I had when I wrote Who’s the Bigot? Learning from Conicts over Marriage and Civil Rights Law. They offer thoughtful empirical and normative observations and surface useful questions about important future investigations. Were I able to write a next chapter—or a sequel—all these commentaries would shape its content. As it is, I …
Pray The Gay Away: Conversion Therapy, Suicide, Religion, And The First Amendment, Eric Cody Bass
Pray The Gay Away: Conversion Therapy, Suicide, Religion, And The First Amendment, Eric Cody Bass
Golden Gate University Race, Gender, Sexuality and Social Justice Law Journal
In the United States, gay conversion therapy (GCT) has not been banned nationally, although twenty states have issued laws banning therapists from practicing it. While the Supreme Court has refused to hear several cases involving challenges to laws banning GCT, recently the Eleventh Circuit Court of Appeals found a local law banning the practice as an unconstitutional regulation on the First Amendment right of speech. This ruling disappointingly confuses ideas of First Amendment protections with what amounts to psychological torture of our youth. It must be noted that while bans on GCT have been successfully upheld as constitutional in other …
Bigotry, Civility, And Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, Linda C. Mcclain
Bigotry, Civility, And Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, Linda C. Mcclain
Faculty Scholarship
In the U.S. and around the globe, concerns over a decline in civility and tolerance and a surge in lethal extremist violence motivated by hatred of religious and racial groups make condemning—and preventing—hatred and bigotry seem urgent. What meaning can the ideal of e pluribus unum (“out of many one”) have in this fraught and polarized environment? Within the U.S., a long line of jurists, politicians, and educators have invoked civic education in public schools as vital to preserving constitutional democracy and a healthy pluralism. How can schools carry out such a civic role in times of democratic discord and …
After Marriage Equality: Dual Fatherhood For Married Male Same-Sex Couples, Jessica Feinberg
After Marriage Equality: Dual Fatherhood For Married Male Same-Sex Couples, Jessica Feinberg
Faculty Publications
In most states, married male same-sex couples who conceive children via gestational surrogacy using sperm from one member of the couple and donor ova must pursue adoption in order to establish legal parentage for the member of the couple who is not genetically related to the child. This is because only a minority of jurisdictions have surrogacy laws that recognize the non-biological intended parent as a legal parent in this situation, and across the United States cisgender male same-sex couples are excluded from the longstanding non-adoptive marriage-based avenues of establishing parentage currently available to both different-sex couples and female same-sex …
Response To Commentaries On Who’S The Bigot?, Linda C. Mcclain
Response To Commentaries On Who’S The Bigot?, Linda C. Mcclain
Faculty Scholarship
One of the joys of writing a book is the chance to have its arguments and observations evaluated by creative and engaged readers. I am very grateful that the scholars included in this book symposium provided such constructive commentary on the manuscript of my book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. One of those commentators, Professor Imer Flores, also generously hosted a wonderful live conference at which I had the chance to hear and engage with early versions of several of these commentaries. The final book, I hope, reflects improvements that grew out of …
Whose Faith Matters? The Fight For Religious Liberty Beyond The Christian Right, Elizabeth Reiner Platt, Katherine M. Franke, Kira Shepherd, Lilia Hadjiivanova
Whose Faith Matters? The Fight For Religious Liberty Beyond The Christian Right, Elizabeth Reiner Platt, Katherine M. Franke, Kira Shepherd, Lilia Hadjiivanova
Faculty Scholarship
By offering a sweeping account of religious liberty activism being undertaken by numerous progressive humanitarian and social justice movements, and uncovering how right-wing activists have fought for conservative Christian hegemony rather than “religious liberty” more generally, this report challenges the leading popular narrative of religious freedom.
Marriage Equality Comes To The Fourth Circuit, Carl Tobias
Marriage Equality Comes To The Fourth Circuit, Carl Tobias
Law Faculty Publications
Marriage equality has come to America. Throughout 2014, several federal appellate courts and numerous district court judges across the United States invalidated state constitutional or statutory proscriptions on same-sex marriage. Therefore, it was not surprising that Eastern District of Virginia Judge Arenda Wright Allen held that Virginia’s bans were unconstitutional in February. The United States Court of Appeals for the Fourth Circuit affirmed her opinion that July. North Carolina, South Carolina, and West Virginia District Judges rejected these jurisdictions’ prohibitions during autumn, and the Supreme Court approved marriage equality the next year. Because marriage equality in the Fourth Circuit presents …
Faith-Based Emergency Powers, Noa Ben-Asher
Faith-Based Emergency Powers, Noa Ben-Asher
Elisabeth Haub School of Law Faculty Publications
This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a legal strategy in the culture wars. This typically involves carving faith-based exceptions to rights of women and LGBT people. The novel concept of Faith-Based Emergency Powers is developed in this Article through an analogy to “traditional” emergency powers. In the war-on-terror, conservatives have argued that judges, legislators and the public must defer to the President and the executive branch in matters involving national security. As scholars have shown, this position has three …
Religious Liberty For A Select Few, Sharita Gruberg, Frank J. Bewkes, Elizabeth Reiner Platt, Katherine M. Franke, Claire Markham
Religious Liberty For A Select Few, Sharita Gruberg, Frank J. Bewkes, Elizabeth Reiner Platt, Katherine M. Franke, Claire Markham
Faculty Scholarship
This report discusses how the Department of Justice’s guidance opens the door to an extreme rewriting of the concept of religious liberty. The guidance — and the numerous agency rules, enforcement actions, and policies that it is influencing — will shift the balance of individual religious protections across the federal government toward a new framing that allows religious beliefs to be used as a weapon against minority groups.
Unmarried And Unprotected: How Religious Liberty Bills Harm Pregnant People, Families, And Communities Of Color, Public Rights/Private Conscience Project
Unmarried And Unprotected: How Religious Liberty Bills Harm Pregnant People, Families, And Communities Of Color, Public Rights/Private Conscience Project
Center for Gender & Sexuality Law
Increasingly, the long-standing national commitment to equality is being undermined by competing claims to religious liberty. Advocates, politicians, and the media have all documented the “wave of religious-freedom bills” introduced in recent years, “almost all inspired by objections to homosexuality and same-sex marriage.” In the 2015-2016 legislative session, dozens of bills were introduced at the state and federal levels that would have created exemptions to otherwise generally applicable laws, including antidiscrimination protections, for persons whose sincerely held religious beliefs conflict with those laws. The most extreme version of these bills would allow religious objectors to engage in a wide range …
The Dangers Of Reform: Normal Life: Administrative Violence, Critical Trans Politics, And The Limits Of Law, Jennifer L. Levi, Giovanna Shay
The Dangers Of Reform: Normal Life: Administrative Violence, Critical Trans Politics, And The Limits Of Law, Jennifer L. Levi, Giovanna Shay
Faculty Scholarship
Professors Jennifer Levi and Giovanna Shay review Dean Spade's new book "Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law." They argue that Professor Spade's theoretical approach, which he describes as "critical trans politics," is most useful when employed to analyze issues relating to criminal punishment and mass incarceration, and that it is less appropriate as a critique of the marriage equality movement. Despite some areas of disagreement with Professor Spade, the Authors conclude that the book makes an important contribution.
The "Accidental Procreation" Argument For Withholding Legal Recognition For Same-Sex Relationships, Edward Stein
The "Accidental Procreation" Argument For Withholding Legal Recognition For Same-Sex Relationships, Edward Stein
Faculty Articles
This article examines “the accidental procreation argument,” an argument against same-sex marriage that still has some traction in United States appellate courts. The accidental procreation argument is meant to take the place of one of the central arguments made by states — and almost universally accepted by courts — in the first batch of cases in the United States about same-sex marriage. That original procreation-based argument — now widely acknowledged to be inadequate — posited that marriage is crucially related to procreation; therefore, since same-sex couples cannot procreate, same-sex couples should not be allowed to marry. The accidental procreation argument …
Lawrence And Garner: The Love (Or At Least Sexual Attraction) That Finally Dared Speak Its Name, Paris R. Baldacci
Lawrence And Garner: The Love (Or At Least Sexual Attraction) That Finally Dared Speak Its Name, Paris R. Baldacci
Faculty Articles
No abstract provided.
Introducing Lawrence V. Texas: Some Background And A Glimpse Of The Future, Edward Stein
Introducing Lawrence V. Texas: Some Background And A Glimpse Of The Future, Edward Stein
Faculty Articles
The Supreme Court's decision in Lawrence v. Texas broke new ground for the legal position of lesbians, gay men and other sexual minorities in the United States. This article reviews the legal background against which Lawrence was decided (focusing on privacy and equal protection arguments). The article then explores the likely implications of this decision, specifically for the recognition of same-sex marriage and the constitutionality of laws that make other sex acts criminal. The article suggests that the most interesting questions after Lawrence concern whether the logic of Justice O'Connor's concurrence (that focused on the equal protection argument) will be …
Henry Minton, Departing From Deviance: A History Of Homosexual Rights And Emancipatory Science In America., Edward Stein
Henry Minton, Departing From Deviance: A History Of Homosexual Rights And Emancipatory Science In America., Edward Stein
Faculty Articles
No abstract provided.