Constitutional Law Commons^™

Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig

Articles, Book Chapters, & Popular Press

The recent Ontario trial decision in Bedford suggests three interrelated principles that municipal law makers should consider when formulating bylaws aimed at regulating sex work. These principles, if upheld on appeal, will inform the constitutionality of both current and prospective bylaws regulating sex work in Canadian cities. In Bedford, Justice Himel concluded that the constitutionality of laws regulating the sex trade must be determined in a legal context which recognizes the violence faced by sex workers. She confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through …

Teaching Values, Teaching Stereotypes: Sex Education And Indoctrination In Public Schools, Jennifer S. Hendricks, Dawn Marie Howerton

Publications

Many sex education curricula currently used in public schools indoctrinate students in gender stereotypes. As expressed in the title of one article: "If You Don't Aim to Please, Don't Dress to Tease," and Other Public School Sex Education Lessons Subsidized by You, the Federal Taxpayer, Jennifer L. Greenblatt, 14 Tex.J. on CL. & CR. 1 (2008). Other lessons pertain not only to responsibility for sexual activity but to lifelong approaches to family life and individual achievement. One lesson, for example, instructs students that, in marriage, men need sex from their wives and women need financial support from their husbands. …

Where Are The Grounds For The Legality Of Abortion? A 13th Amendment Argument, Laura Sjoberg

Cardozo Journal of Equal Rights & Social Justice

The article critiques the legal framework supporting abortion rights, arguing that privacy-based jurisprudence, as established in *Roe v. Wade*, is inadequate due to its roots in a gendered public/private divide that perpetuates inequality. It proposes a new constitutional basis for abortion rights under the Thirteenth Amendment, framing forced pregnancy as a form of involuntary servitude and emphasizing gender subordination rather than privacy or equality.

Guarding Their Sanctuary On The Offense: Criminal Contempt Actions By Domestic Violence Victims In Private Capacity, Mili Patel

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Gender-Classified Imports: Equal Protection Violations In The Harmonized Tariff Schedule Of The United States, Jason Lewis

Cardozo Journal of Equal Rights & Social Justice

The note argues that gender-based classifications in the Harmonized Tariff Schedule of the United States (HTSUS) likely violate the Equal Protection Clause of the Fourteenth Amendment. It critiques the Federal Circuit's application of a lower level of scrutiny in Totes-Isotoner Corp. v. United States and advocates for courts to apply intermediate scrutiny, as established by Craig v. Boren, to such classifications. The analysis also examines the role of the Office of the U.S. Trade Representative (USTR) in trade negotiations and asserts that international agreements cannot override constitutional protections.

The Four Pillars Of Constitutional Doctrine, Suzanna Sherry

Cardozo Law Review

No abstract provided.

Political Party Restrictions And The Appointments Clause: The Federal Election Commission's Appointments Process Is Constitutional, Joshua Kershner

Cardozo Law Review

No abstract provided.

Sex And The Supremes: Towards A Legal Theory Of Sexuality, Elaine Craig

PhD Dissertations

This thesis examines how the Supreme Court of Canada, across legal contexts, has tended to conceptualize sexuality. It focuses primarily on areas of public law including sexual assault law, equality for sexual minorities, sexual harassment and obscenity and indecency laws. There were a number of trends revealed upon reviewing the jurisprudence in this area. First, the Court’s decisions across legal contexts reveal a tendency to conceptualize sexuality as innate, as a pre-social naturally occurring phenomenon and as an essential element of who we are as individuals. This is true whether one is speaking of the approach to gay and lesbian …

Physical-Strength Rationales For De Jure Exclusion Of Women From Military Combat Positions, Maia Goodell

Seattle University Law Review

Women have been serving in the military in steadily increasing numbers for decades. Nevertheless, the military remains one of the few areas in which the U.S. government decides what roles are open to women based on de jure exclusions. This Article examines the law governing de jure classification, noting that a mere normative belief about women’s proper place in society is an insufficient basis to justify a sex-based exclusion. It then probes the most common rationale advanced in support of the continued de jure exclusion of women: physical strength. The Article examines four problems with the physical strength rationale: (1) …

Fait Accompli?: Where The Supreme Court And Equal Pay Meet A Narrow Legislative Override Under The Lilly Ledbetter Fair Pay Act, Megan Coluccio

Seattle University Law Review

This Comment argues the Lilly Ledbetter Fair Pay Act’s consequences will be minimally felt, so long as the Act is narrowly construed. The Comment suggests congressional action was appropriate after the Supreme Court’s Ledbetter decision and discusses the political and legislative debate leading to the Act. In addition, the Comment analyzes the Act in application, exploring its meaning, implications, and function. The Comment argues that the concerns and consequences arising from the enactment of the Act can be alleviated and avoided by a narrow interpretation of its amendment to Title VII of the Civil Rights Act. Finally, the Comment recommends …

Gender Autonomy, Transgender Identity And Substantive Due Process: Finding A Rational Basis For Lawrence V. Texas, Jillian T. Weiss

Journal of Race, Gender, and Ethnicity

No abstract provided.

Thurgood Marshall, The Race Man, And Gender Equality In The Courts, Taunya Lovell Banks

Faculty Scholarship

Renowned civil rights advocate and race man Thurgood Marshall came of age as a lawyer during the black protest movement in the 1930s. He represented civil rights protesters, albeit reluctantly, but was ambivalent about post-Brown mass protests. Although Marshall recognized law's limitations, he felt more comfortable using litigation as a tool for social change. His experiences as a legal advocate for racial equality influenced his thinking as a judge.

Marshall joined the United States Supreme Court in 1967, as dramatic advancement of black civil rights through litigation waned. Other social movements, notably the women's rights movement, took its place. The …

What Best To Protect Transsexuals From Discrimination: Using Current Legislation Or Adopting A New Judicial Framework, S. Elizabeth Malloy

Faculty Articles and Other Publications

This article specifically examines the issues and controversies that transsexual individuals have encountered as a result of their lack of protection under anti-discrimination laws, particularly the Americans with Disabilities Act (ADA) and Title VII. Part I is an overview of our society's binary sex/gender system and how this system serves to exclude and disenfranchise transsexuals. Part II examines the relationship between disability law and transsexuals, both explaining why they were excluded from the ADA and how state disability laws have provided more protection. Part III discusses how transsexuals have fared under a Title VII sex discrimination approach. This section also …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Michigan Journal of Gender & Law

This Article uses the term contingent equal protection to describe the constitutional analysis that applies to a range of governmental efforts to ameliorate race and sex hierarchies. "Contingent" refers to the fact that the equal protection analysis is contingent upon the existence of structural, de facto inequality. Contingent equal protection cases include those that involve explicit race and sex classifications, facially neutral efforts to reduce inequality, and accommodation of sex differences to promote equality. Uniting all three kinds of cases under a single conceptual umbrella reveals the implications that developments in one area can have for the other two.

Secularism, The Veil And "Reasonable Interlocutors": Why France Is Not That Wrong, Guy Haarscher

Penn State International Law Review (1982 - 2011)

No abstract provided.

Gps Monitoring May Cause Orwell To Turn In His Grave, But Will It Escape Constitutional Challenges? A Look At Gps Monitoring Of Domestic Violence Offenders In Illinois, 43 J. Marshall L. Rev. 845 (2010), Mary Ann Scholl

UIC Law Review

No abstract provided.

Rethinking Consent In A Big Love Way, Cheryl Hanna

Michigan Journal of Gender & Law

This Article is based on a presentation at the Michigan Journal of Gender and Law as part of their symposium "Rhetoric & Relevance: An Investigation into the Present & Future of Feminist Legal Theory." In it, I explore the problem of categorical exclusions to the consent doctrine in private intimate relationships through the lens of the HBO series Big Love, which is about modern polygamy. There remains the normative question both after Lawrence v. Texas and in feminist legal theory of under what circumstances individuals should be able to consent to activity that takes place within the context of a …

Is Constitutionalism Bad For Intersectional Feminists?, Beverley Baines

Penn State International Law Review (1982 - 2011)

No abstract provided.

Citizenship Privilege Or The Right To Religious Freedom: The Blackmailing Of France's Islamic Women, Yael Barbibay

Cardozo Journal of International and Comparative Law

The note examines the tension between France's commitment to laïcité and the rights of Islamic immigrants, particularly women, to religious freedom and cultural identity. It critiques the denial of citizenship to Faiza Mabchour, arguing that such decisions reflect a broader effort to suppress Islamic practices and undermine pluralism. The analysis contends that France's rigid application of laïcité violates international human rights norms, particularly the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). The article advocates for a more inclusive approach to citizenship that balances secularism with religious freedom and cultural diversity.

The Basic Law At 60 - Equality And Difference: A Proposal For The Guest List To The Birthday Party, Susanne Baer

Articles

The German constitution, named "Basic Law", has proven to work although many did not believe in it when it was framed. Others emphasize desiderata. Sabine Berghahn commented at the 50th birthday that it has developed "far too slowly and [some] has even gone completely wrong." ' Jutta Limbach, former President of the Federal Constitutional Court, observed that constitutional history was "anything but regal, but very difficult and full of obstacles. '' 2 Former Chancellor Willy Brandt famously called the constitution "a snail on thin ice." So what is missing when we analyze the Basic Law, and what should be finally …

'Struck' By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

This is an attempt at recovery. This Essay hopes to call attention to then-Professor Ruth Bader Ginsburg's merits brief in Struck v. Secretary of Defense. The brief has been under appreciated in part because the Supreme Court declined to decide the case. But anyone seeking to understand the origins and nature of Justice Ginsburg's views on sex discrimination would be well advised to read this brief. So would anyone interested in reimagining the bounds of constitutional possibility in the realm of gender equality.

Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig

Articles, Book Chapters, & Popular Press

The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …

Converging Trajectories: Interest Convergence, Justice Kennedy, And Jeannie Suk's "The Trajectory Of Trauma", Jennifer S. Hendricks

Publications

This essay responds to Jeannie Suk's recent article in the Columbia Law Review, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse. Suk argues that feminists are responsible for legitimizing a paternalistic attitude towards women that came home to roost in Gonzales v. Carhart. This essay argues that Suk's critique of feminist paternalism needs to be supplemented with a discussion of traditional paternalism and its influence on how feminist advocacy enters the law. In particular, it suggests that Derrick Bell's theory of interest convergence provides a useful framework for understanding the cultural, legal, and rhetorical evidence adduced …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Publications

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de …

Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

Publications

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the "health exception" to abortion regulations to demonstrate why equality arguments are needed--namely because our legal tradition's conception of liberty is based on male experience, no theory of basic human rights grounded in women's reproductive experiences has developed. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom by requiring that pregnancy and abortion be analogized to male experiences. As a result, equality arguments focus on either the bodily or the social aspect of …

In The Manner Prescribed By The State: Potential Challenges To State-Enforced Hospital Limitations On Childbirth Options, Krista Stone-Manista

Cardozo Journal of Equal Rights & Social Justice

The article argues that hospital bans on vaginal births after cesarean (VBAC) infringe upon women's legal and constitutional rights, violating principles of autonomy and equality. These bans are not only medically unnecessary but also undermine international human rights standards that protect women's decisional autonomy in healthcare. The analysis posits that such bans discriminate against women and set a dangerous precedent for state and medical control over women's bodies during pregnancy.

Barriers To Financing: Is European Union Indirect Discrimination Law The Answer For Female Entrepreneurs?, Adam G. Panopoulos

Cardozo Journal of Equal Rights & Social Justice

The note explores whether European Union indirect discrimination law, particularly Directive 2004/113/EC, can address the barriers female entrepreneurs face in accessing financing. It examines the application of indirect discrimination principles to financial services, analyzing ECJ case law and advocating for the integration of gender mainstreaming to enhance gender equality in entrepreneurship.

From Choice To Reproductive Justice: De-Constitutionalizing Abortion Rights, Robin West

Georgetown Law Faculty Publications and Other Works

The Essay argues that the right to abortion constitutionalized in Roe v. Wade is by some measure at odds with a capacious understanding of the demands of reproductive justice. No matter its rationale, the constitutional right to abortion is fundamentally a negative right that rhetorically keeps the state out of the domain of family life. As such, the decision privatizes not only the abortion decision, but also parenting, by rendering the decision to carry a pregnancy to term a choice. It thereby legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and …

Same-Sex Relationships And The Full Faith And Credit Clause: Reducing America To The Lowest Common Denominator, Rena M. Lindevaldsen

Faculty Publications and Presentations

This Article examines the legal and policy implications that arise when a state that expressly prohibits recognition or enforcement of any rights arising from a same-sex relationship is confronted with a request to register and enforce a child custody order issued by another state that gives custody or visitation rights to a biological mother's former same-sex partner. As more states confer marital rights to same-sex couples, this issue will occur with increasing frequency. The first reported case in the nation to address the issue, Miller-Jenkins v. Miller-Jenkins, has garnered attention from the national media, including a cover story in the …

Rethinking Women And The Constitution: An Historical Argument For Recognizing Constitutional Flexibility With Regards To Women In The New Republic, Samantha Ricci

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.