Family Law Commons^™

Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe

Pepperdine Law Review

No abstract provided.

Misappropriating Women’S History In The Law And Politics Of Abortion , Tracy A. Thomas

Seattle University Law Review

To examine the veracity of the political and legal claims of a feminist history against abortion, this Article focuses on one of the leading icons used in antiabortion advocacy—Elizabeth Cady Stanton. Stanton has, quite literally, been the poster child for FFL’s historical campaign against abortion, appearing on posters, flyers, and commemorative coffee mugs. Advocates claim that Stanton is a particularly fitting spokesperson because she was a “feisty gal who had seven children and was outspokenly pro-life.” They claim that she “condemned abortion in the strongest possible terms” and was “a revolutionary who consistently advocated for the rights of women, for …

The Calculus Of Accommodation: Contraception, Abortion, Same-Sex Marriage, And Other Clashes Between Religion And The State, Robin F. Wilson

Scholarly Articles

This Article considers a burning issue in society today— whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate samesex marriages. In all these contexts, religious objectors claim a special right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien

University of Arkansas at Little Rock Law Review

Over time, the definition of family has shifted from being premised upon kinship to legal status. In modern times, family structure is based more upon function than form, seeking to derive its status as a family from the subjective intent of its members to act as a family. Many early settlers in the colonial territories came to America to escape religious persecution and practice their own religion.

For that reason, biblical language and religious doctrine formed the basis for common law, statutes, and practice. Today, there remains the notion among many Americans that the law represents a divine plan and …

Hammer V. Amit, Eliezer Rivlin, Dorit Beinisch, Asher Grunis, Miriam Naor, Edna Arbel, Salim Joubran, Elyakim Rubinstein

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

This opinion is a result of cases joined together in order for the Court to resolve the general questions regarding the cause of action known as “wrongful birth”. This issue arises when a person born with a congenital disability claims that careful conduct by petitions – usually medical professionals who treated the pregnant mother – would have entirely prevented that person’s birth. Two distinct …

Why Obama’S Words Didn’T Go Far Enough, Sonja R. West, Dahlia Lithwick

Popular Media

When President Obama announced his support of same-sex marriage, he talked broadly about “equality” and “fairness.” He spoke of “opposing discrimination against gays and lesbians” and making sure that nobody is treated as “less than full citizens when it comes to their legal rights.” It was a powerful moment—historic and emotional. In the Aaron Sorkin version, the orchestra would have soared at this point as the supporting cast members exchanged teary-eyed yet knowing nods.

But then President Obama described how these rights should be protected and the music stopped with a squawk. Same-sex marriage, he said, is not in fact …

Modern Odysseus Or Classic Fraud - Fourteen Years In Prison For Civil Contempt Without A Jury Trial, Judicial Power Without Limitation, And An Examination Of The Failure Of Due Process, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Defense Of Marriage Acts: A Fifty State Survey, Erica A. Holzer

Student Scholarship

This document includes every DoMA statute and constitutional amendment in all 50 states in alphabetical order as of January 31, 2012. The text of these laws is provided, as well as a link to the statute or constitutional amendment on Westlaw.

Doma Statutes And Same-Sex Divorce Litigation, Erica A. Holzer

Student Scholarship

For the purposes of writing a article on same-sex divorce, it became necessary to categorize the various state Defense of Marriage Act (DoMA) statutes and constitutional amendments to analyze how each type of DoMA might handle a petition for same-sex divorce. In doing so, I developed six different categories: (1) No DoMA; (2) Definitional DoMAs; (3) DoMAs that void same-sex marriages; (4) DoMAs that explicitly deny benefits of marriage; (5) DoMAs that declare that there is no same-sex marriage to dissolve; and (6) DoMAs that explicitly prohibit same-sex divorce. This document shows which state DoMAs fall into each of these …

The Ninth Circuit's Perry Decision And The Constitutional Politics Of Marriage Equality, William N. Eskridge

Georgetown Law Faculty Publications and Other Works

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.”

Proposition 8 intended that gay …

Gal-On V. Attorney General (Summary), Eliezer Rivlin, Asher Grunis, Miriam Naor, Elyakim Rubinstein, Hanan Melcer, Neal Hendel, Dorit Beinisch, Edmond E. Levy, Edna Arbel, Salim Joubran, Esther Hayut

Translated Opinions

By a majority of six justices out of a panel of eleven, the High Court of Justice rejected petitions challenging the constitutionality of the Citizenship and Entry to Israel Act. The majority justices acknowledged there was a constitutional right for family life, which derives from the right to human dignity, but held that the scope of the right does not extend to realizing the right specifically in Israel. It was also held that to the extent that constitutional rights have been violated, including the right to equality, it is a violation that passes muster under the test of the Limitations …

Regulating At The Margins: Non-Traditional Kinship And The Legal Regulation Of Intimate And Family Life, Courtney Megan Cahill

Scholarly Publications

This Article offers a new theory of how the law attempts to control intimate and family life and uses that theory to argue why certain laws might be unconstitutional. Specifically, it contends that by regulating non-traditional relationships and practices that receive little or no constitutional protection— same-sex relationships, domestic partnerships, de facto parenthood, and nonsexual procreation—the law is able to express its normative ideals about all marriage, parenthood, and procreation. By regulating non-traditional kinship, then, the law can be aspirational in a way that the Constitution would ordinarily prohibit and can attempt to channel all of us in ways that …

Anonymously Provided Sperm And The Constitution, Mary P. Byrn, Rebecca Ireland

Faculty Scholarship

Obtaining sperm to use in Assisted Reproductive Technology (ART) is relatively simple. Hospitals, clinics, and sperm banks throughout the United States are in the business of selling sperm from literally thousands of men. Once a man is approved to provide sperm, he contracts with the sperm bank to supply sperm for a specified period of time and designates himself as either an anonymous or open-identity sperm provider. When a man chooses to provide his sperm anonymously, both the sperm provider and intended parents agree to complete anonymity – that is, the sperm provider can never know the parents or any …

Wedlocked, Mary P. Byrn, Morgan L. Holcomb

Faculty Scholarship

For as long as marriage has existed in the United States, divorce has been its necessary opposite. So strong is the need for divorce that the Supreme Court has suggested it is a fundamental right, and every state in the country allows access to no-fault divorce. For opposite-sex couples, legally ending their marriage is possible as a matter of right. For married same-sex couples, however, state DoMAs (Defense of Marriage Acts) have been a stumbling block – preventing access to divorce in some states. Same-sex couples in numerous states are being told by attorneys and judges that they cannot terminate …

I Do. Is That Okay With You?: A Look At How Most States Are Circumventing The Full Faith And Credit Clause And Equal Protection Clause To Not Recognize Legal Same-Sex Marriages From Other States And Its Effect On Society, Rebecca Hameroff

Florida A & M University Law Review

Due to statutes, bans, and the Federal Defense of Marriage Act, states do not have to recognize legal same-sex marriages from sister states that recognize same-sex marriage. This paper examines the denial of the fundamental right to marriage for same-sex couples, the violation of the Full Faith and Credit Clause of Article IV, Section 1 of the United States Constitution and Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by not recognizing same-sex marriages legally performed in other states. It starts by looking at the impact these practices have on same-sex couples and the toll it …

Bridging The Great Divide--A Response To Linda Greenhouse And Reva B. Siegel's Before (And After) Roe V. Wade: New Questions About Backlash, Lolita Buckner Inniss

Publications

This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry focuses on what factors are implicated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. By naming party politics and the Catholic Church, Greenhouse and Siegel posit two crucial elements that shaped the abortion debate. I assert, however, that what is not discussed in their Article is the way numerous other factors have figured into …

Custody Rights Of Lesbian And Gay Parents Redux: The Irrelevance Of Constitutional Principles, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

Disputes over custody and visitation can arise when a marriage ends and one parent comes out as gay or lesbian. the heterosexual parent may seek custody or may seek to restrict the activities of the gay or lesbian parent, or the presence of the parent's same-sex partner, during visitation. A gay or lesbian parent's assertion of constitutional rights has not been an effective response to such efforts. that is not likely to change. Advocates for gay and lesbian parents have argued forcefully for a nexus text, permitting consideration of a parent's sexual orientation only when there is evidence of an …

The Constitutional Right To (Keep Your) Same-Sex Marriage, Steve Sanders

Articles by Maurer Faculty

Same-sex marriage is legal in six states, and nearly 50,000 same-sex couples have already married. Yet 43 states have adopted statutes or constitutional amendments banning same-sex marriage (typically called mini defense of marriage acts, or “mini-DOMAs”), and the vast majority of these measures not only forbid the creation of same-sex marriages, they also purport to void or deny recognition to the perfectly valid same-sex marriages of couples who migrate from states where such marriages are legal. These non-recognition laws effectively transform the marital parties into complete legal strangers to each other, with none of the customary rights or incidents of …

Who Owns The Soul Of The Child?: An Essay On Religious Parenting Rights And The Enfranchisement Of The Child, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

At common law, and (for most of the nation's history) under state statutory regimes, the authority of the parent to direct the child's upbringing was a matter of duty, not right, and chief among parental obligations was the duty to provide the child with a suitable education. It has long been a legal commonplace that at common law the parent had a "sacred right" to the custody of his or her child, that the parent's right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on …

Referenda And The District Of Columbia's Human Rights Act: Voting On Same-Sex Marriage In The Nation's Capital, Jacob Stewart

Legislation and Policy Brief

Beginning with Massachusetts in 2003, the courts and legislatures of many states have had to decide whether same-sex marriage is or should be a fundamental right under their respective constitutions.  Although only five states and the District of Columbia legally perform same-sex marriages, a few other jurisdictions are in the process of proposing laws moving in that direction.  However, the vast majority of states are holding fast to the traditional heterosexual definition of marriage.  Thirty-eight states have adopted some sort of Defense of Marriage Act, constitutional amendment, or similar measure that defines marriage as the union between one man and …

Same Sex Marriage: Does The Constitution Or State Constitution Support Same-Sex Marriages?, Sonja Seehusen

University of the District of Columbia Law Review

No abstract provided.

Lochner, Lawrence, And Liberty, Joseph F. Morrissey

Georgia State University Law Review

Many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation.

Advocates have made a wide variety of arguments attacking such restrictions. Scholars and litigants frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However, such arguments are often defeated by counter arguments presented with religious, moral, and even emotional fervor.

This article presents and defends a new analytical framework based on liberty of contract to advance gay rights. …

Parental Rights And The Best Interests Of The Child: Implications Of The Adoption And Safe Families Act Of 1997 On Domestic Violence Victims' Rights, Rachel Venier

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Foundational Myths And The Reality Of Dependency: The Role Of Marriage , Ann Shalleck

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Breaking Up Is Hard To Do: Comments On Martha Fineman's Cracking The Foundational Myths: Independence, Autonomy, And Self-Sufficiency, , Suzanna Danuta Walters

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Why Lesbians And Gay Men Should Read Martha Fineman, Nancy D. Polikoff

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Bursting The Foundational Myths Of Reproductive Labor Under Capitalism: A Call For Brave New Families Or Brave New Villages? , Mary Romero

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Caretakers, Entitlement, And Diversity , Twila L. Perry

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Foundational Myths And The Reality Of Dependency: The Role Of Marriage , Ann Shalleck

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Breaking Up Is Hard To Do: Comments On Martha Fineman's Cracking The Foundational Myths: Independence, Autonomy, And Self-Sufficiency, , Suzanna Danuta Walters

American University Journal of Gender, Social Policy & the Law

No abstract provided.