Law Commons^™

Cracks In The Shield: The Necessity Of The Employment Non-Discrimination Act, James N. Bolotin

James N Bolotin

This paper argues that legislation protecting homosexuals from employment discrimination is necessary, despite hopeful arguments that the text of Title VII should or can already protect against discrimination based on sexual orientation. The paper discusses how the precedent of the federal courts has gone too far in the wrong direction to believe that they will fix this interpretation problem on their own. Furthermore, it posits that the passage of ENDA or similar legislation will successfully lessen the prevalence of this type of discrimination.

Part I considers the history of Title VII’s “because of sex” protection. This includes a short discussion …

Virgin Fathers: Paternity Law, Assisted Reproductive Technology, And The Legal Bias Against Gay Dads, Elizabeth J. Levy

Elizabeth J Levy

In a small town called Bethlehem, the famous story goes, a young virgin woman gave birth to a son. At the heart of this story lies an enigma that would transform Western civilization: if a woman becomes pregnant without engaging in sexual intercourse with a man, then who is the father of her child? In the twenty-first century United States, the proliferation of assisted reproductive technology (ART) has given this metaphysical question a new significance. More specifically, how the law assigns paternity outside of sexual intercourse is relevant for all men who participate in ART and become “virgin fathers.” In …

Identity/Time, Nancy J. Knauer

Nancy J. Knauer

This paper engages the unspoken fourth dimension of intersectionality — time. Using the construction of lesbian, gay, bisexual, and transgender (LGBT) identities as an example, it establishes that identity, as it is lived and experienced, is not only multivalent, but also historically contingent. It then raises a number of points regarding the temporal locality of identity — the influence of time on issues of identity and understanding, its implications for legal interventions, social movement building, and paradigms of progressive change. As the title suggests, the paper asks us to consider the frame of identity over time.

Love In Action: Noting Similarities Between Lynching Then & Anti-Lgbt Violence Now, Koritha Mitchell

Koritha Mitchell

The more I learn about the violence currently plaguing LGBT communities, the more it reminds me of the brutal practice of lynching, which has been the focus my research for the past 15 years. Ultimately, both forms of violence are designed to deny targeted groups recognition as citizens. Relying on my expertise regarding racial violence as well as the data on anti-LGBT attacks collected by the National Coalition of Anti-Violence Programs (NCAVP), this essay notes similarities between lynching at the last turn of the century and anti-LGBT violence today. The piece identifies five parallels: 1) the mundane quality of the …

Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman

Stephen J Elkind

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education …

Censor, Resist, Repeat A History Of Censorship Of Gay And Lesbian Sexual Representation In Canada, Brenda Cossman

brenda cossman

No abstract provided.

Revisiting The Meaning Of Marriage: Immigration For Same-Sex Spouses In A Post-Windsor World, Scott Titshaw

Scott Titshaw

When the Supreme Court struck down Section 3 of DOMA in United States v. Windsor, it eliminated a categorical barrier to immigration for thousands of LGBT families. Yet Windsor was not an immigration case, and the Court’s opinion did not address at least three resulting immigration questions: What if a same-sex couple legally marries in one jurisdiction but resides in a state that does not recognize the marriage? What if the couple is in a legally-recognized “civil union” or “registered partnership”? Will children born to spouses or registered partners in same-sex couples be recognized as “born in wedlock” for immigration …

Lgbt Issues And Adult Guardianship: A Comparative Perspective, Nancy J. Knauer

Nancy J. Knauer

Guardianship reform has largely overlooked issues related to sexual orientation and gender identity. Lesbian, gay, bisexual, and transgender (LGBT) individuals, however, present a distinct set of needs and concerns due to certain unique demographic characteristics, the evolving nature of LGBT civil rights, and the stubborn persistence of anti-LGBT bias and prejudice. This chapter explores these LGBT-specific concerns from a comparative perspective and identifies the various ways that seemingly neutral guardianship laws can work to silence LGBT identities and place LGBT families at risk. It concludes that guardianship systems should incorporate safeguards that expressly acknowledge the importance of sexual orientation and …

Bullying Across The Lifecourse: Redefining Boundaries, Responsibility, And Harm, Nancy J. Knauer

Nancy J. Knauer

Over the last fifteen years, our understanding of bullying has experienced a radical redefinition. In our schools, universities, workplaces, and assisted living facilities, behavior that we once dismissed as “horseplay” or “teasing” has increasingly been labeled as unacceptable and, in some instances, criminal. We seem to have reached one of those societal tipping points where certain behaviors we once took for granted are no longer acceptable. Not that long ago, sexual harassment was simply the cost of being female in the workplace, but the 1980s saw a period of redefinition when sexual harassment was reinterpreted and understood to be a …

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

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

Anthony C. Infanti

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 …

A Modest Proposal: To Deport The Children Of Gay Citizens, & Etc: Immigration Law, The Defense Of Marriage Act And The Children Of Same-Sex Couples, Scott Titshaw

Scott Titshaw

The Defense of Marriage Act (DOMA), which defines the terms “marriage” and “spouse” for federal purposes, clearly prevents the recognition of same-sex spouses under U.S. immigration law. Unless judges and immigration officials are careful to limit it as Congress intended, DOMA might also have a tragic unintended effect on some parent-child relationships. The Immigration and Nationality Act (INA) employs terms like “born in wedlock” and “stepparent” to define parent-child relationships for various immigration and citizenship purposes. One could argue, therefore, that DOMA prevents INA recognition of parent-child relationships stemming from a same-sex marriage. These relationships determine whether a person can …

Case Note: Nabozny V. Podlesny, William B. Turner

William B Turner

This case note describes and provides context for the 1996 opinion in Nabozny v. Podlesny, in which the Seventh Circuit Court of Appeals reversed a district judge's grant of summary judgment to defendants in a suit by a former student who complained of years of severe bullying and harassment by his peers because of his sexual orientation, which school administrators persistently failed to take steps to stop.

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the question whether the law of adultery applies to same-sex extramarital conduct, which has divided courts nationwide. While the case law to date has been sparse—since the issue has only arisen in the context of opposite-sex marriages in which one spouse has an extramarital same-sex relationship—with the growth in the number of states recognizing same-sex marriage, the question is certain to recur with increased frequency.

In the manuscript, I examine the question in four different contexts: criminal adultery prosecutions, fault-based divorce actions, civil tort actions for interference with the marital relationship, and murder cases raising …

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 …

Taxing Civil Rights Gains, Anthony C. Infanti

Anthony C. Infanti

In this article, I take a novel approach to the question of what constitutes a “tax.” I argue that the unique burdens imposed on same-sex couples by the federal and state “defense of marriage” acts (the DOMAs) constitute a tax on lesbian and gay 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 …

Dismembering Families, Anthony C. Infanti

Anthony C. Infanti

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 …

Lesbian Mothers & Gay Fathers: Overt And Subconscious Biases Concerning Parenting Fitness, Jude Hall

InfraRead: Dalhousie Journal of Legal Studies Online Supplement

This article empirically assesses the possibility of judicial biases against gay and lesbian parents, particularly in the family law context of custody and access disputes. The study covers cases decided between 1978-2007.

Ghosts In The Postmodern Family, Annette Appell

annette appell

As legal theory and doctrine respond to the range and complexity of biological and social connections that increasingly compose families, they evoke a bionormative nuclear family framework for lesbian and gay families, stepfamilies and families created with outsourced reproductive materials or labor. This Article questions this approach because it disregards the complex foundational roles of biological relationships in American jurisprudence and fails to appreciate the unique aspects of kinship in these postmodern families. Instead, this Article anchors the postmodern family law movement in the physical, social and economic conditions that affect the most disaffected among us: those who are socially, …

Why Same-Sex Marriage Will Not Repeat The Errors Of No-Fault Divorce, Austin R. Caster

Austin R Caster

Because so many negative ramifications resulted from changing marriage laws through no-fault divorce legislation, it is understandable that those who rightfully feared no-fault divorce would also fear any additional changes to the definition of marriage. Those fears are unfounded as applied to same-sex marriage legislation, however, because the same consequences resulting from no-fault divorce do not apply to same-sex marriage. Whereas changing marriage exit rights through laws such as no-fault divorce legislation resulted in an increased divorced rate throughout the world, the opposite has happened in countries that have allowed same-sex marriage laws by changing marriage entrance rights. Society has …

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’ …

From Nondiscrimination To Civil Marriage, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

As William Faulkner explained, we must be free not because we claim freedom, but because we practice it. This article analyzes the continuing constitutional struggle for civil rights on the basis of sexual orientation, concentrating on the constitution state's critique of its constitution. Connecticut is currently at the forefront of recognizing civil rights. Connecticut has ruled that discrimination against gay and lesbian persons is subject to intermediate scrutiny, which has historically been used to review laws that employ quasi-suspect classifications such as gender. Civil marriage for same sex couples is legal in Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont. …

Laboratories Of Constitutionality: How State High Courts Paved The Way For Federal Courts To Invalidate Prohibitions On Same-Sex Marriage, Tyler T. Rosenbaum

Tyler T Rosenbaum

This article looks at the opinions of the state high courts that have adjudicated the constitutionality under their state constitutions of prohibitions on same-sex marriage and, given the extent to which the state high courts deferred to Supreme Court case law in interpreting their own constitutions, concludes that a federal court would be more likely than not to find that such prohibitions violate the United States Constitution.

With respect to a claimed substantive due process right to same-sex marriage, the Supreme Court’s ruling in Lawrence v. Texas undermined much of the precedent that would have required a careful, tradition-bound analysis. …

Bringing Sexual Orientation And Gender Identity Into The Tax Classroom, Anthony C. Infanti

Anthony C. Infanti

A recent piece in the Journal of Legal Education analyzing student surveys by the Law School Admission Council reports that, despite improvement in the past decade, LGBT students still experience a law school climate in which they encounter substantial discrimination both inside and outside the classroom. Included among the list of “best practices” to improve the law school climate for LGBT students was a recommendation to incorporate discussions of LGBT issues in non-LGBT courses, such as tax. In a timely coincidence, the Section on Sexual Orientation and Gender Identity Issues held a day-long program at the 2009 AALS annual meeting …

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 …

Gay Equality, Religious Liberty, And The First Amendment, Matthew J. Murray

Matthew Murray

Are gay rights laws and religious liberty fundamentally in conflict? Would legal recognition of same-sex marriage lead to a wave of litigation threatening the religious liberty of those who object to such unions on religious grounds? Opponents of same-sex marriage have vocally asserted as much. This Article argues, however, that modifications in civil marriage laws in fact pose little to no threat to the liberty of religious objectors. Rather, the real arena of potential conflict between religious liberty and gay equality arises in the context of sexual orientation nondiscrimination laws. But these tensions are not new. The courts should be …

Left Hand, Third Finger: The Wearing Of Wedding (Or Other) Rings As A Form Of Assertive Conduct Under The Hearsay Rule, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the social phenomena of making use of what I call “ring evidence” to determine an individual’s marital status or sexual orientation. More specifically, I note the common practice of identifying people as married based on the presence of a ring on the ring finger of the left hand, as gay and in a committed relationship based on the presence of a ring on the ring finger of the right hand, and as single based on the absence of a ring.

Next, I identify two problems with making use of ring evidence to draw conclusions about …

Deconstructing The Duty To The Tax System: Unfettering Zealous Advocacy On Behalf Of Lesbian And Gay Taxpayers, Anthony C. Infanti

Anthony C. Infanti

In this article, I consider how the tax lawyer’s generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit “lottery.” The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax …

It Takes Three, Baby: The Lack Of Standard, Legal Definitions Of “Best Interest Of The Child” And The Right To Contract For Lesbian Potential Parents, Harvey L. Fiser, Paula K. Garrett

Harvey L. Fiser

In order to consider the plausibility of contracts regarding AI, this article will first review various options and legal ramifications for choices regarding AI and then focus on the effect of inconsistent application of the Uniform Parentage Act among states that have chosen to adopt any legislation. This legal conundrum creates major obstacles for lesbian couples in procreation and in legal protection for children and often denies lesbian Americans the right to equal enforcement of contracts. This article will then consider how the current standard of “best interest of the child” is being used in the absence of the UPA …