Fourteenth Amendment Commons^™

The Constitutionality Of And Need For Retroactive Civil Legislation Relating To Child Sexual Abuse, Jenna Miller

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the constitutionality and necessity of retroactive child sexual abuse laws, arguing that they provide victims with a pathway to justice despite statutes of limitations. It supports this stance with Supreme Court rulings and examples of successful implementations in states like California and Delaware, emphasizing the balance between victims' rights and defendants' rights.

Section 5 Constraints On Congress Through The Lens Of Article Iii And The Constitutionality Of The Employment Non-Discrimination Act, Craig Konnoth

Publications

The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.

However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key …

The (Mis)Categorization Of Sex In Anglo-American Cases Of Transsexual Marriage, John Parsi

Michigan Law Review

The United States' promise to establish equality for all has been challenged by post-operative transsexuals seeking recognition in their acquired sex. The birth certificate is the legal gateway to changing other legal documents; but the process for changing the birth certificate varies widely from state to state. This lack of national uniformity makes post-operative transsexuals' recognition of their acquired sex complicated at best and impossible at worst. This Note details the legal progression from non-recognition to recognition of post-operative transsexuals' acquired sex in the United Kingdom and through the European Court of Human Rights. The Note goes on to explore …

Second-Class Citizenship: The Tension Between The Supremacy Of The People And Minority Rights, 43 J. Marshall L. Rev. 963 (2010), Adam H. Morse

UIC Law Review

No abstract provided.

Drawing Bisexuality Back Into The Picture: How Bisexuality Fits Into Lgbt Legal Strategy Ten Years After Bisexual Erasure, Heron Greenesmith

Cardozo Journal of Equal Rights & Social Justice

The article argues that bisexuality remains legally invisible, both in legal culture and jurisprudence, due to its inherent complexity and the reliance of legal arguments on a binary understanding of sexual orientation. It extends Kenji Yoshino's theory of bisexual erasure into the legal context, proposing that bisexuality is not just socially invisible but also legally inconspicuous. The analysis focuses on two main hypotheses: first, that bisexuality is inherently invisible to the law beyond deliberate erasure, and second, that where bisexuality is legally relevant, it complicates legal arguments that depend on the binary of sexuality. The article concludes by advocating for …

The Liberty Of Innocent Delights: Obscene Devices And The Limits Of State Power After Lawrence V. Texas, E. Benton Keatley

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Sexual Politics And Social Change, Darren Lenard Hutchinson

UF Law Faculty Publications

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the "political opportunity" for the Lawrence ruling and made the opinion relatively "safe".

Currently, GLBT rights …

Saul Alinsky And The Litigation Campaign To Win The Right To Same-Sex Marriage, 42 J. Marshall L. Rev. 643 (2009), Gerald N. Rosenberg

UIC Law Review

No abstract provided.

Defensive Mechanism: A Father's Right To Defend The Unborn, Lawrence Estrada

Cardozo Journal of Equal Rights & Social Justice

The note examines the Michigan Court of Appeals' decision in Kurr, which recognized a father's right to defend his unborn children under the defense of others doctrine, citing Michigan's fetal homicide law. This ruling extends legal protections to fetuses while maintaining exceptions for lawful abortions, reflecting broader shifts in legal and public policy toward fetal protection. The decision highlights the tension between protecting unborn life and preserving women's reproductive rights, emphasizing the narrow application of the defense to avoid undermining abortion rights established by Roe v. Wade.

State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller

Faculty Scholarship

This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a …

Change Of Sex Designation On Transsexuals' Birth Certificates: Public Policy And Equal Protection, Stephanie Markowitz

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal inconsistencies in the United States regarding the amendment of birth certificates for postoperative transsexual individuals, highlighting the disparity in treatment between male-to-female (MTF) and female-to-male (FTM) transsexuals. It argues that these inconsistencies violate the Equal Protection Clause by subjecting similarly situated individuals to different standards, often requiring MTF transsexuals to undergo more invasive surgeries than FTM transsexuals. The author advocates for a more equitable approach, emphasizing the importance of medical professionals' opinions and aligning legal standards with modern understandings of gender identity.

Wedlock, Blood Relationship, And Citizenship, Logan Bobo

Cardozo Journal of Equal Rights & Social Justice

The note examines the conflicting interpretations of U.S. nationality law under the Immigration and Nationality Act (INA), particularly focusing on whether citizenship transmission requires a blood relationship or can be based on the legal status of the parents' marriage. It argues that the Ninth Circuit's interpretation, which does not require a blood relationship for children born in wedlock, better aligns with the INA's goals of promoting family unity and avoiding gender-based discrimination. The note critiques the State Department's interpretation, as outlined in the Foreign Affairs Manual (FAM), for lacking statutory and judicial support, and highlights the need for congressional or …

Separating Civil Unions And Religious Marriage-A New Paradigm For Recognizing Same-Sex Relationships, Dov Berger

Cardozo Public Law, Policy & Ethics Journal

The note argues that civil marriage laws defining marriage as between a man and a woman violate the Establishment Clause by favoring one religious perspective over another. It proposes a solution to this constitutional issue by advocating for the separation of civil unions from religious marriage, drawing on New York's kashrut and get laws as a model. The analysis focuses on two key cases, Hernandez v. Robles and Lewis v. Harris, to highlight the legal and religious tensions surrounding same-sex marriage. The author suggests that replacing marriage with a civil union system would respect both legal and religious traditions …

The Fourteenth Amendment, Same-Sex Unions, And The Supreme Court, Michael J. Perry

Loyola University Chicago Law Journal

No abstract provided.

Civil Commitment Of Sexually Violent Predators: The Search For A Limiting Principle, Aman Ahluwalia

Cardozo Public Law, Policy & Ethics Journal

The article challenges the legal and empirical justifications for civil commitment of sexually violent predators, arguing that current standards, such as mental abnormality and lack of control, are overly broad and lack robust empirical support. It contends that recidivism rates for sex offenders are not significantly higher than those of other offenders, undermining the rationale for civil commitment. The analysis advocates for a more nuanced approach to incapacitation, emphasizing criminal law solutions over medicalized commitments.

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Lifting The Pall Of Orthodoxy: The Need For Hearing A Multitude Of Tongues In And Beyond The Sexual Education Curricula At Public High Schools, Carlo A. Pedrioli

Faculty Scholarship

When public high schools promote heterosexuality at the cost of denying sexual minority youth the opportunity to learn about minority sexualities, these schools contribute to the disastrous situation in which many sexual minority high school students find themselves. This approach, which many public high schools take, is unnecessarily destructive and warrants prompt change. Instead of helping to perpetuate many of the challenges that sexual minority students face in high school, public high schools can and need to help address these challenges. To establish the case for such a position, this article begins by presenting the plight of many sexual minority …

For The Sake Of All Children: Opponents And Supporters Of Same-Sex Marriage Both Miss The Mark, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Impact Of International Human Rights Developments On Sexual Minority Rights, Arthur S. Leonard

NYLS Law Review

No abstract provided.

Out Of The O.R. And Into The Streets: Exploring The Impact Of Intersex Media Activism, Sharon E. Preves

Cardozo Journal of Equal Rights & Social Justice

Babies are born intersexed, with ambiguous genitalia or other reproductive anatomical features, every day. Physical sexual ambiguity occurs frequently, affecting approximately one in 2000 births. Most infants born intersexed are surgically and hormonally altered to reflect the sexual anatomy associated with "standard" female or male sex assignment. This article explores the mobilization and methods of intersex individuals and their allies to destigmatize intersexuality and to alter the medical treatment they receive. I explore the intersex movement's use of mass media as a strategic activist tool and the implications of this mobilization for cultural and medical reform, arguing that media attention …

Equal Protection For Homosexuals: Why The Immutability Argument Is Necessary And How It Is Met, Kari Balog

Cleveland State Law Review

The immutability factor is possibly the most disputed of the four factors of the Frontiero test, a test laid out by the Supreme Court to identify suspect classifications. Doctors and scientists have spent years studying sexual orientation, attempting to find the cause of homosexuality in order to determine whether or not sexual orientation may be changed. Unfortunately, the many studies have not provided a definitive answer to the question of immutability. This Note considers many of the psychological, hormonal, and more recent genetic studies and determines what the medical and scientific evidence means for homosexuals in their pursuit for equal …

Foreword: Loving Lawrence, Pamela S. Karlan

Michigan Law Review

Two interracial couples. Two cases. Two clauses. In Loving v. Virginia, the Supreme Court struck down a Virginia statute outlawing interracial marriage. In Lawrence v. Texas, the Court struck down a Texas statute outlawing sexual activity between same-sex individuals. Each case raised challenges under both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.

Choosing Liberty Over Equality And Sacrificing Both: Equal Protection And Due Process In Lawrence V. Texas, Andrew J. Seligsohn

Cardozo Journal of Equal Rights & Social Justice

The article critiques the Supreme Court's decision in Lawrence v. Texas, arguing that the Court's reliance on substantive due process under the Due Process Clause, rather than the Equal Protection Clause, undermines the broader equality concerns faced by the LGBTQ+ community. By prioritizing liberty over equality, the Court missed an opportunity to establish a more robust legal foundation for future LGBTQ+ rights, leaving the decision vulnerable to challenge and failing to address the systemic discrimination against gays and lesbians.

A Prisoner's Right To Transsexual Therapies: A Look At Brooks V. Berg, Linda D. Chin

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and ethical implications of providing medical treatment, particularly gender reassignment surgery (GRS), to transgender prisoners under the Eighth Amendment, which prohibits cruel and unusual punishment. It argues that while courts have recognized the necessity of addressing gender dysphoria, the financial and logistical challenges of providing such treatments raise concerns about equity and resource allocation. The ruling in Brooks v. Berg highlights the tension between constitutional rights and the practical limitations of prison systems in meeting these needs.

Lawrence And Garner: The Love (Or At Least Sexual Attraction) That Finally Dared Speak Its Name, Paris R. Baldacci

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal evolution from *Bowers v. Hardwick* to Lawrence v. Texas, highlighting how the latter marked a pivotal shift in recognizing LGBTQ+ rights by emphasizing personal autonomy and dignity. It underscores the significance of narrative strategies in shaping judicial decisions, particularly in *Lawrence*, where the plaintiffs' personal stories influenced the Court's ruling.

Freedom Of Discrimination?:The Conflict Between Public Accommodations' Freedom Association And State Anti-Discrimination Laws, 37 J. Marshall L. Rev. 125 (2003), Gregory J. Wartman

UIC Law Review

No abstract provided.

Does The Texas Homosexual Conduct Law Violate The Fourteenth Amendment, Dale Carpenter

Faculty Journal Articles and Book Chapters

No abstract provided.

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

Sexualized Racism/Gendered Violence: Outraging The Body Politic In The Reconstruction South, Lisa Cardyn

Michigan Law Review

From its establishment in the months following the Civil War by a motley assortment of disgruntled former rebels, the first Ku Klux Klan, like its many vigilante counterparts, employed terror to realize its invidious social and political aspirations. This terror assumed disparate shapes - from the storied nightriding of disguised bands on horseback, to cryptic threats, horrific assaults, and, not infrequently, murder. While students of Reconstruction have considered many facets of klan violence, none to date has focused exclusively on sexual violence in its historical specificity. Yet, as the work of Catherine Clinton, Laura Edwards, and Martha Hodes persuasively demonstrates, …

Multivocal Prejudices And Homo Equality, William N. Eskridge

Indiana Law Journal

Addison C. Harris Lecture, October 27, 1998, Indiana University Law School.