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Articles 1 - 30 of 44
Full-Text Articles in Law
Discrimination Under A Description, Patrick S. Shin
Discrimination Under A Description, Patrick S. Shin
Suffolk University Law School Faculty Works
In debates about the permissibility of certain kinds of differential treatment, our judgments often seem to depend on how the conduct in question is described. For example, legal prohibitions on same-sex marriage seem clearly impermissible insofar as they can be described as a form of sex discrimination, less clearly so, at least under federal law, if described simply as sexual orientation discrimination, and arguably not discriminatory at all insofar as they constitute a universally-imposed disability on marrying within one’s own sex. It seems, in other words, that the prohibition of same-sex marriage constitutes legally impermissible discrimination under some descriptions but …
Fixing Hollingsworth: Standing In Initiative Cases, Karl Manheim, John S. Caragozian, Donald Warner
Fixing Hollingsworth: Standing In Initiative Cases, Karl Manheim, John S. Caragozian, Donald Warner
Loyola of Los Angeles Law Review
In Hollingsworth v. Perry, the Supreme Court dismissed an appeal filed by the “Official Proponents” of California’s Proposition 8, which banned same-sex marriage in California. Chief Justice Roberts’ majority opinion held that initiative sponsors lack Article III standing to defend their ballot measures even when state officials refuse to defend against constitutional challenges. As a result, Hollingsworth provides state officers with the ability to overrule laws that were intended to bypass the government establishment—in effect, an “executive veto” of popularly-enacted initiatives.
The Article examines this new “executive veto” in depth. It places Hollingsworth in context, discussing the initiative process …
Revoking Rights, Craig J. Konnoth
Revoking Rights, Craig J. Konnoth
Publications
In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …
Judge In Gay Marriage Case Subject To Speculation - The Associated Press (Quotes: Gerard Bradley) August 6, 2010, Gerard Bradley
Judge In Gay Marriage Case Subject To Speculation - The Associated Press (Quotes: Gerard Bradley) August 6, 2010, Gerard Bradley
Gerard V. Bradley
Judge in gay marriage case subject to speculation - The Associated Press (Quotes: Gerard Bradley) August 6, 2010
Gerard Bradley, a law professor at the University of Notre Dame, published a Fox News column in the hours before Walker filed his opinion faulting the media for not forcing Walker to address if he had a personal interest in the outcome of the case.
"I am not saying that Judge Walker should have recused himself in Perry v. Schwarzenegger," Bradley said. "I am not saying so because nowhere (as far as I know) has Judge Walker volunteered or been made to …
The Freedom To Marry: Politics And Law In 2014 And Beyond, Ari Ezra Waldman
The Freedom To Marry: Politics And Law In 2014 And Beyond, Ari Ezra Waldman
Other Publications
No abstract provided.
With 30 States Set For Marriage Equality, Road Ahead Still Uncertain, Arthur S. Leonard
With 30 States Set For Marriage Equality, Road Ahead Still Uncertain, Arthur S. Leonard
Other Publications
No abstract provided.
State Constitutions And The Basic Structure Doctrine, Manoj Mate
State Constitutions And The Basic Structure Doctrine, Manoj Mate
Manoj S. Mate
Hollingsworth V. Perry: United States Supreme Court Grants Certiorari To Hear The ‘Prop 8′ Case, Executive Online Editor
Hollingsworth V. Perry: United States Supreme Court Grants Certiorari To Hear The ‘Prop 8′ Case, Executive Online Editor
GGU Law Review Blog
No abstract provided.
Proposition 8 Is Unconstitutional, But Not Because The Ninth Circuit Said So: The Equal Protection Clause Does Not Support A Legal Distinction Between Denying The Right To Same-Sex Marriage And Not Providing It In The First Place, Nathan Rouse
Seattle University Law Review
In Perry v. Brown, the Ninth Circuit held that Proposition 8 is unconstitutional. But in doing so, the court stepped back from the breadth of the district court’s decision. The Ninth Circuit did not address whether same-sex marriage is a fundamental constitutional right. Nor did the Ninth Circuit address whether the Equal Protection Clause categorically prevents states from limiting marriage to opposite-sex couples. Instead, the Ninth Circuit reached the narrow conclusion that Proposition 8 violates the Equal Protection Clause because it withdrew a preexisting legal right from a marginalized group without any legitimate purpose. The Ninth Circuit should have held …
Think Of The Children: Advancing Marriage Equality By Renewing The Focus On Same-Sex Adoption Litigation, Jacob M. Reif
Think Of The Children: Advancing Marriage Equality By Renewing The Focus On Same-Sex Adoption Litigation, Jacob M. Reif
Jacob M Reif
No abstract provided.
Proposition 8: California Law After In Re Lance W. And People V. Castro, Mark Dyer Klein, Randall A. Cohen
Proposition 8: California Law After In Re Lance W. And People V. Castro, Mark Dyer Klein, Randall A. Cohen
Pepperdine Law Review
Until recently, California provided a relatively high level of constitutional protection to criminal defendants. With the passage of Proposition 8 in 1982, the California voters expressed their desire to decrease this level of protection in order to remove impediments to the effective prosecution of criminally accuseds. This comment will examine two of the major provisions of Proposition 8 and their effect on California law in light of major cases decided by the California Supreme Court in 1985.
Marriage Rights And The Good Life: A Sociological Theory Of Marriage And Constitutional Law, Ari Ezra Waldman
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 …
What If No Majorities Emerge On Doma, Prop 8?, Arthur S. Leonard
What If No Majorities Emerge On Doma, Prop 8?, Arthur S. Leonard
Other Publications
No abstract provided.
In Tribute: M. Katherine B. Darmer, Tom Campbell, Erwin Chemerinsky, Bobby L. Dexter, Katherine M. Franke, Mark Osler, Marisa S. Cianciarulo, James L. Doti, Richard D. Fybel, Kirsten E. Gillibrand, Tiffany Chang
In Tribute: M. Katherine B. Darmer, Tom Campbell, Erwin Chemerinsky, Bobby L. Dexter, Katherine M. Franke, Mark Osler, Marisa S. Cianciarulo, James L. Doti, Richard D. Fybel, Kirsten E. Gillibrand, Tiffany Chang
Faculty Scholarship
The editors of the Chapman Law Review respectfully dedicate this issue to Professor M. Katherine B. Darmer.
The Future Of Same-Sex Marriage In California, Elizabeth Hollis
The Future Of Same-Sex Marriage In California, Elizabeth Hollis
Elizabeth Hollis
This article will discuss in detail the issues relating to the rights of same-sex couples wishing to get married in California. First the article examines the history of same-sex marriage in California prior to the most recent Perry v. Brown ruling. The article then focuses on the named plaintiffs in this case, concentrating particularly on their history and how they became involved in the case. Next, the litigation process of Perry v. Brown and the recent decision handed down by Circuit Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit will be reviewed. Finally, the …
Adolescent Identity Versus The First Amendment: Sexuality And Speech Rights In The Public Schools, Steven J. Macias
Adolescent Identity Versus The First Amendment: Sexuality And Speech Rights In The Public Schools, Steven J. Macias
San Diego Law Review
This Article examines the legal tensions that currently exist between public schools' attempts to protect gay students from bullying and harassment and antigay students' First Amendment rights to engage in allegedly harassing speech. First, it looks at the popular conception of the relationship between childhood or adolescence and sexuality by considering the political and legal fallout of the same-sex marriage debate. Then this Article turns to a conception of public schooling that would allow for the constitutionally permissible regulation of antigay-identity speech. Next, through the use of critical theory, this Article explains why First Amendment defenses to gay harassment have …
Animus Thick And Thin: The Broader Impact Of The Ninth Circuit Decision In Perry V. Brown, Nan D. Hunter
Animus Thick And Thin: The Broader Impact Of The Ninth Circuit Decision In Perry V. Brown, Nan D. Hunter
Georgetown Law Faculty Publications and Other Works
This essay is a response to an article by: Eskridge Jr., William N., The Ninth Circuit's Perry Decision and the Constitutional Politics of Marriage Equality, in 64 Stan. L. Rev. Online 93 (2012).
This essay examines the impact of Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), the first appellate federal court decision on the constitutional validity of marriage exclusion laws. The author argues that the major contribution of the Perry decision is to illuminate the meaning of animus, a term that is sharply contested in Equal Protection jurisprudence, and to explicate its relationship to standards of …
Standing Of Intervenor-Defendants In Public Law Litigation, Matthew I. Hall
Standing Of Intervenor-Defendants In Public Law Litigation, Matthew I. Hall
Scholarly Works
Unless the plaintiff has a personal stake in the outcome, Article III of the United States Constitution requires federal courts to dismiss a plaintiff’s claim for lack of standing. That much is clearly established by decades of precedent. Less understood, however, is the degree to which Article III also requires defendants to possess a personal stake. The significance of defendant standing often goes unnoticed in case law and scholarship, because the standing of the defendant in most lawsuits is readily apparent:any defendant against whom the plaintiff seeks a remedy has a personal interest in defending against the plaintiff’s claim.
But …
The Terms Of The Debate: Litigation, Argumentative Strategies, And Coalitions In The Same-Sex Marriage Struggle, Mary Ziegler
The Terms Of The Debate: Litigation, Argumentative Strategies, And Coalitions In The Same-Sex Marriage Struggle, Mary Ziegler
Scholarly Publications
Why, in the face of ongoing criticism, do advocates of same-sex marriage continue to pursue litigation? Recently, Perry v. Schwarzenegger, a challenge to California’s ban on same-sex marriage, and Gill v. Office of Personnel Management, a lawsuit challenging section three of the federal Defense of Marriage Act, have created divisive debate. Leading scholarship and commentary on the litigation of decisions like Perry and Gill have been strongly critical, predicting that it will produce a backlash that will undermine the same-sex marriage cause.
These studies all rely on a particular historical account of past same-sex marriage decisions and their …
Article Iii Double-Dipping: Proposition 8'S Sponsors, Blag, And The Government's Interest, Suzanne B. Goldberg
Article Iii Double-Dipping: Proposition 8'S Sponsors, Blag, And The Government's Interest, Suzanne B. Goldberg
Faculty Scholarship
A major procedural question looms over the two marriage cases currently before the U.S. Supreme Court: Do the parties who seek to defend the marriage-recognition bans have standing to advance their views? The question arises because the governments that would have Article III standing, by virtue of their enforcement authority, are not defending their own laws. Instead, in Hollingsworth v. Perry, private parties are attempting to take up the state government’s mantle to de fend Proposition 8, which withdrew marriage rights from same-sex couples in California. And in United States v. Windsor, five members of the House of …
Legal Consciousness And Lgbt Research: The Importance Of Law In The Everyday Lives Of Lgbt Individuals, Nancy J. Knauer
Legal Consciousness And Lgbt Research: The Importance Of Law In The Everyday Lives Of Lgbt Individuals, Nancy J. Knauer
Nancy J. Knauer
The law occupies a prominent place in the everyday lives of LGBT individuals, and the continuing regulation and policing of sexuality and gender weighs heavily on many people who identify as LGBT. Despite remarkable progress in the area of LGBT civil rights, LGBT individuals in the United States still lack formal equality and are denied many of the protections that are afforded other historically disadvantaged groups. These legal disabilities represent an ongoing source of minority stress and can produce a correspondingly high degree of “legal consciousness” within the LGBT community. Given the importance of law in LGBT lives, it is …
Ely At The Altar: Political Process Theory Through The Lens Of The Marriage Debate, Jane S. Schacter
Ely At The Altar: Political Process Theory Through The Lens Of The Marriage Debate, Jane S. Schacter
Michigan Law Review
Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, …
Standing At The Crossroads: A Review Of The Novel Issues Of Standing At Play In Perry V. Schwarzenegger, Natasha Mennecke
Standing At The Crossroads: A Review Of The Novel Issues Of Standing At Play In Perry V. Schwarzenegger, Natasha Mennecke
Natasha Mennecke
This piece examines whether the Proponents of Proposition 8 have standing to appeal the district court's decision invalidating the measure. The paper examines the question of federal Article III standing and whether California Law creates a Liberty Interest sufficient for federal standing.
A Rational Approach To California's Proposition 8, Jennifer Sirrine
A Rational Approach To California's Proposition 8, Jennifer Sirrine
Jennifer Sirrine
This comment focuses on California's Proposition 8 and the more searching rational basis test, arguing that the more searching rational basis test is distinct from the traditional level of review. It first analyzes the Supreme Court's precedent regarding the more searching rational basis test, then parses out when the test is applied, and the elements of the test itself. It then applies the more searching rational basis test to California's Proposition 8. Due to the fact the Supreme Court's jurisprudence regarding classifications involving homosexuals is convoluted at best, it further argues that the more searching rational basis test should be …
Reconsidering Arizonans: Proposition 8, Direct Democracy, And The Supreme Court, Frank M. Dickerson Iii, Reid Bolton
Reconsidering Arizonans: Proposition 8, Direct Democracy, And The Supreme Court, Frank M. Dickerson Iii, Reid Bolton
Frank M. Dickerson III
The most interesting issue raised by the Proposition 8 litigation in California is the question of standing for ballot-initiative sponsors in defensive litigation and how courts should deal with these unique public “representatives”. This Article argues that ballot-initiative sponsors such as ProtectMarriage.com meet the relevant Article III standing criteria and should be allowed to appeal a district court’s judgments against the proposition. Standing for ballot-initiative sponsors is consistent with both the Constitutional and the prudential concerns underlying the doctrine of standing and allows the proper party to defend an initiative when the government chooses not to. Ballot initiative sponsors play …
Just The Facts: The Perils Of Expert Testimony And Findings Of Fact In Gay Rights Litigation, Libby Adler
Just The Facts: The Perils Of Expert Testimony And Findings Of Fact In Gay Rights Litigation, Libby Adler
Libby S. Adler
ABSTRACT Just the Facts: The Perils of Expert Testimony and Findings of Fact in Gay Rights Litigation Before Perry v. Schwarzenegger, striking down Proposition 8 in California, the judicial victories for same-sex marriage all had been decided on motions for summary judgment. None required the testimony of witnesses; none produced a trial transcript; none resulted in findings of fact. But Judge Vaughn Walker of the Northern District of California presided over a trial. He made eighty separate factual findings, many of them facts about gay people drawn from the testimony of plaintiffs’ experts – and many are contradictory. The plaintiffs …
Perry V. Schwarzenegger: Is Traditional Marriage Unconstitutional?, George W. Dent
Perry V. Schwarzenegger: Is Traditional Marriage Unconstitutional?, George W. Dent
Faculty Publications
This is a brief defense of the constitutionality of California's Proposition 8, which limits marriage for purposes of California law to a relationship between one man and one woman.
What Happened In Iowa?, David Pozen
What Happened In Iowa?, David Pozen
Faculty Scholarship
Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).
November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …
On Equality: The Anti-Interference Principle, Donald J. Kochan
On Equality: The Anti-Interference Principle, Donald J. Kochan
Donald J. Kochan
This Essay introduces the “Anti-Interference Principle” – a new term on the meaning of equality, or at least one not yet so-named in the equality lexicon – as a necessary foundation for achieving the goal of true equality. Equality has a long-standing place in the discussion of politics and jurisprudence and remains a struggle of definition today. Rather than rehash the mass of scholarship, this Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. …
Perry V. Schwarzenegger: Trying Same-Sex Marriage., Michael J. Ritter
Perry V. Schwarzenegger: Trying Same-Sex Marriage., Michael J. Ritter
The Scholar: St. Mary's Law Review on Race and Social Justice
In 2008, California voters enacted Proposition 8, carving out an exception to the State constitution’s equal protection, due process, and privacy guarantees. After litigation in state court proved ineffective, same-sex couples sought relief in federal court in the widely discussed case Perry v. Schwarzenegger. Though the trial court released its decision only three weeks ago, the case has received attention by the national media and by legal circles throughout the country. This Article addresses the progression of the case of Perry from the filing of the case to its current status before the Ninth Circuit Court of Appeals. It offers …