Law Commons^™

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 …

Preventing The Spread Of Aids By Restricting Sexual Conduct In Gay Bathhouses: A Constitutional Analysis, Stephen L. Collier

Golden Gate University Law Review

This analysis of the state's authority to limit sexual behavior in gay bathhouses will begin by examining the precedents involving the use of quarantine and nuisance statutes to control the spread of communicable diseases. A discussion of common law limitations on the use of those statutes will follow. The constitutional analysis begins with the right to privacy embodied in the United States and California Constitutions, and its relationship to gay sexual intimacy generally. The application of rational basis and strict scrutiny standards will be analyzed and arguments presented in favor of applying strict scrutiny. The state's compelling interest in stopping …

Adult Adoption: A "New" Legal Tool For Lesbians And Gay Men, Peter N. Fowler

Golden Gate University Law Review

This Comment explores the current statutory framework for adult adoption, the parameters of the legal relationship created, and the scope of the right to privacy issues involved in the exercise of this statutory right. In addition, possible motives individuals may have for utilizing adult adoption, the need for attorneys to identify potential problem areas for their clients, and the potential disadvantages of such a legal relationship, particularly with respect to the dynamics of the individuals' relationship, are discussed.

Homophobia, "Manifest Homosexuals" And Political Activity: A New Approach To Gay Rights And The "Issue" Of Homosexuality, Douglas Warner

Golden Gate University Law Review

This Comment will survey the popular and largely unsupportable beliefs about homosexuality, which result in the societal oppression of gay people. The law's reflection of this cultural homophobia has been instrumental in that oppression. In light of the homophobia in society and its consequences in the law, the GLSA court's approach was necessary, its results consistent with contemporary knowledge and with fundamental principles of a just society. The purpose of this Comment is to demonstrate why that is so and to speculate on the decision's implications for the gay rights movement, for gay people, and not least of all, for …

Comparative Study Of Cruel & Unusual Punishment For Engaging In Consensual Homosexual Acts (In International Conventions, The United States And Iran), Sanaz Alasti

Annual Survey of International & Comparative Law

This article undertakes a comparative study of cruel and unusual punishment for consensual homosexual acts, in the United States and Iran, based on the prohibition of these punishments in international conventions. The primary object of this paper is to establish that the criminalization of consensual homosexual acts is arbitrary and as capricious as punishing other minorities. Furthermore, criminalization contradicts the object and purpose of the Universal Declaration of Human Rights and virtually every other law concerning sexual minorities. This article is further motivated by the novelty and necessity of the topic. Surprisingly little research has been done focusing on this …

South Carolina's Sexual Conduct Law After Lawrence V. Texas, Marghretta Adeline Hagood

South Carolina Law Review

No abstract provided.

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 …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

Scholarly Works

This Article analyzes the application of employment discrimination law to sexual minorities--lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities. While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

Dying For Love: Homosexuality In The Middle East, Heather Simmons

Human Rights & Human Welfare

Today in the United States, the most frequent references to the Middle East are concerned with the War on Terrorism. However, there is another, hidden battle being waged: the war for human rights on the basis of sexuality. Homosexuality is a crime in many of the Middle Eastern states and is punishable by death in Sudan, Saudi Arabia, Yemen, Qatar, Kuwait, and Iran (Ungar 2002). Chronic abuses and horrific incidences such as the 2009 systematic murders of hundreds of “gay” men in Iraq are seldom reported in the international media. Speculation as to why this population is hidden includes the …

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 …

Testing Democracy: Marriage Equality, Citizen-Lawmaking And Constitutional Structure, Francisco Valdes

Articles

No abstract provided.

Where Cultures And Sovereigns Collide: Balancing Federalism, Tribal Self-Determination, And Individual Rights In The Adoption Of Indian Children By Gays And Lesbians, Steve Sanders

Articles by Maurer Faculty

This article analyzes the complex interplay between adoption (traditionally a matter reserved to state family law) and the federal Indian Child Welfare Act in the context of adoptions by gays and lesbians.

As a federal statute that partially preempts state law for the benefit of Native Americans, ICWA implicates three sovereigns: the United States, the state where the adoption petition is brought, and the tribe whose child is the focus of the proceeding. This interplay of sovereigns in itself makes Indian child welfare law complicated and interesting. Beyond these sovereign interests, also to be considered are the interests and rights …

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 …

“Immutability” And Stigma: Towards A More Progressive Equal Protection Rights Discourse, M. Katherine Baird Darmer

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Trying A New Way: Barack Obama’S Tolerance Of Intolerance, Stephanie L. Phillips

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Sexual Rights And State Governance, Katherine M. Franke

Faculty Scholarship

We sit at an interesting juncture in the evolution (in some cases, devolution) of the idea of sexual rights in international law. For at the very moment that we are experiencing a retraction in both domestic and international commitments to rights associated with sexual and reproductive health, we see sexual rights of a less-reproductive nature gaining greater uptake and acceptance. It is the moral hazard associated with perceived gains in the domain of international rights for lesbians and gay men that I want to address today. In the end, the point I want to bring home is that a particular …

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 …