Law Commons^™

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari E. Waldman

Ari E Waldman

This article identifies logical and due process errors in cases involving HIV-related aggravated assaults, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this paper suggests that punishing this conduct through a charge of aggravated assault – which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death – is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the rule of thumb that HIV can possibly be transmitted through bodily fluids …

Privacy Torts: Unreliable Remedies For Lgbt Plaintiffs, Anita L. Allen

All Faculty Scholarship

In the United States, both constitutional law and tort law recognize the right to privacy, understood as legal entitlement to an intimate life of one’s own free from undue interference by others and the state. Lesbian, gay, bisexual, and transgender (“LGBT”) persons have defended their interests in dignity, equality, autonomy, and intimate relationships in the courts by appealing to that right. In the constitutional arena, LGBT Americans have claimed the protection of state and federal privacy rights with a modicum of well-known success. Holding that homosexuals have the same right to sexual privacy as heterosexuals, Lawrence v. Texas symbolizes the …

Familiar Stories: An International Suggestion For Lgb Family Military Benefits After The Repeal Of “Don’T Ask, Don’T Tell”, Maureen Brocco

Maureen Brocco

This Article advocates for Congress to make benefits available to the families of lesbian, gay, and bisexual (LGB) servicemembers after the repeal of Don’t Ask, Don’t Tell, by passing an amended version of the Domestic Partnership Benefits and Obligations Act of 2009 (DPBOA). Don’t Ask, Don’t Tell is only one element of the quandary of laws preventing LGB servicemembers from receiving military family benefits equal to those of their heterosexual peers. The federal Defense of Marriage Act (DOMA) limits the federal definition of a marriage to opposite-sex couples and explicitly bars same-sex couples from receiving federal recognition, regardless of the …

Taxing Civil Rights Gains, Anthony C. Infanti

Michigan Journal of Gender & Law

This Article is divided into four parts. In Part I, the nature of the levy that the DOMAs impose on same-sex couples is explained. In Part II, how this levy can be classified as a "tax" is explained. In Part III, the federal- and state-level ramifications of classifying the levy that the DOMAs impose as a "tax" are discussed. Finally, brief concluding remarks are provided that discuss how this Article might pave the way for making similar arguments with respect to other nontraditional families and, concomitantly, how it demonstrates the transformative potential of same-sex marriage.

The Meaning Of Marriage: Immigration Rules And Their Implications For Same-Sex Spouses In A World Without Doma, Scott Titshaw

Scott Titshaw

An estimated 35,000 U.S. Citizens are living in our country with same-sex foreign partners, but with no right to stay here together on the basis of their relationship. Many are faced with a choice between their partners and the country they love. This is true, even if the couple is legally married in one of the growing number of states and foreign countries that recognize same-sex marriage. The Defense of Marriage Act (DOMA), which defines “marriage” under all federal law as an exclusively heterosexual institution, now stands squarely in their way. Reform options that would help these couples to stay …

Sorry Ma'am, Your Baby Is An Alien: Outdated Immigration Rules And Assisted Reproductive Technology, Scott Titshaw

Scott Titshaw

The growing use of assisted reproductive technology (ART) and legal recognition of same-sex relationships are raising questions regarding the recognition of parent-child relationships. State and foreign family law have been wrestling with these issues for decades, but U.S. immigration law is lagging far behind. So far, guidance exists on only one ART related issue under the Immigration and Nationality Act (INA): whether a U.S. citizen transmits her citizenship to a child born abroad. Unfortunately, that guidance is contradictory. The U.S. Department of State (DOS) requires genetic kinship for citizenship transmission. The Ninth Circuit Court of Appeals focuses on the parents’ …

International Human Rights Law And Co-Parent Adoption, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Children would benefit substantially if governments legally recognized same sex marriages and parenting. This article analyzes international human rights law, co-parent adoption, and the recognition of gay and lesbian families. It addresses civil marriage and adoption challenges for same sex families and assesses European Court of Human Rights jurisprudence relating to same-sex adoption. This article considers the international community's efforts to implement the best interest of the child standard concluding that recognition of same sex families is in the best interest of the child and should be facilitated in a timely manner by jurisdictions at all levels.

Taking Initiatives: Reconciling Race, Religion, Media And Democracy In The Quest For Marriage Equality, Anthony E. Varona

Articles in Law Reviews & Other Academic Journals

Election Days 2008 and 2009 were disappointing ones for advocates of equal rights for lesbian, gay, bisexual and transgender (LGBT) Americans, especially supporters of marriage equality. In this comprehensive article, Professor Varona identifies and examines five interrelated tactical lessons the LGBT movement can glean from these recent defeats. He also provides a roadmap at the end of the Introduction to the article, describing the five subsections devoted to these individual lessons.

Section I, provides an overview of what occurred in the various statewide ballot initiative battles in 2008 and 2009 and then describes the preliminary analyses of the reasons for …

And The Ban Plays On…For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Theorizing And Litigating The Rights Of Sexual Minorities, Nancy Levit

Faculty Works

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 …

Disrupting Sexual Categories Of Intimate Preference, Luke A. Boso

Luke A. Boso

Society tends to treat a person's sexual orientation and intimate preferences as if those concepts are static and immutable. People regularly divide themselves into binary gay and straight categories, and similarly seek masculine or feminine qualities in an appropriately sexed person. These intimate preferences occupy a uniquely private position in society, and the characteristics to which people claim attraction are thought so personal as to be sacred. In turn, we resist characterizing our intimate preferences as discrimination despite the tangible harms that befall those who are disproportionately excluded from romantic opportunities. But individual discriminatory intimate practices do not necessarily imply …