Sexuality and the Law Commons^™

The Political Morality Of Public Sex, Elaine Craig

Articles, Book Chapters, & Popular Press

In deciding cases that involve the intersection of criminal law and sexual mores, the courts are faced with the challenge of determining the appropriate moral framework from which to approach simultaneously pri- vate and social concerns. In indecency cases, Canadian courts historically employed a communitarian model of sexual morality based on the community’s standard of tolerance. However, the Supreme Court of Canada’s recent jurisprudence affirms a harm-based test, which relies upon and protects the fundamental values en- shrined in the Canadian constitution. This article ana- lyzes the Court’s decisions in R. v. Labaye and R. v. Kouri and demonstrates that …

"We Reserve The Right To Refuse Service To Anyone.", Jennifer S. Hendricks

Publications

This essay is based on remarks at the 2008 teaching conference of the Society of American Law Teachers, on the theme Teaching for Social Change When You're Not Preaching to the Choir. It reflects on my experience as a liberal/progressive teaching constitutional law in a conservative southern state. It also explores the importance of not just training students in the skills of a junior lawyer but also preparing them for their long-term obligations as citizens and members of the bar.

Ten Questions On Gay Rights And Freedom Of Religion, Wilson Huhn

Akron Law Faculty Publications

In my opinion most of the legal and social problems that arise under the Constitution stem from the belief, held by some people, that they are better than other people. They do not hate anyone. They simply believe that they are superior and that the law ought to treat them better than the other group. This is true of whites who think they are superior to blacks, men who think they are superior to women, and heterosexuals who think they are superior to homosexuals.

People have often justified these types of beliefs by appeal to religion and have attempted to …

Marriage As A Message: Same-Sex Couples And The Rhetoric Of Accidental Procreation, Kerry Abrams, Peter Brooks

Faculty Scholarship

In his dissent in the 2003 case Goodridge v. Department of Health, Justice Robert Cordy of the Massachusetts Supreme Court introduced a novel argument in support of state bans on same-sex marriage: that marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Since 2003, every state appellate court considering a same-sex marriage case has adopted Justice Cordy's dissent until the recent California Supreme Court decision In Re Marriage Cases. In case after case, courts have held that …

Repeal Of "Don't Ask, Don't Tell:" A Smooth Transition, Sharon E. Debbage Alexander, Kathi S. Westcott

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, And ‘The Long War’”, Penelope J. Pether

Working Paper Series

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …

Rethinking Child Advocacy After Roper V. Simmons: "Kids Are Just Different" And "Kids Are Like Adults" Advocacy Strategies, Elisa Poncz

Cardozo Public Law, Policy & Ethics Journal

The article examines the tension between two competing arguments in juvenile law: "kids are just different" and "kids are like adults." It critiques the binary approach often used in child advocacy and proposes a more nuanced, patchwork strategy that combines both perspectives to better serve the diverse needs of juveniles. The analysis focuses on key legal contexts, including the death penalty, life without parole, and minors' rights in medical decision-making, education, and internet access. The author argues that a balanced approach is essential to address the complexities of juvenile rights and responsibilities.

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.

Letting "Privates" Be Private: Toward A Right Of Gender Selfdetermination, Samuel E. Bartos

Cardozo Journal of Equal Rights & Social Justice

The note examines the contradictory landscape of transgender jurisprudence, particularly focusing on the legal struggles of transgender individuals to achieve recognition of their gender identity. It highlights the Kansas Supreme Court's decision in In the Matter of the Estate of Marshall G. Gardiner, which denied legal recognition of a transgender individual's marriage, contrasted with more progressive rulings in other jurisdictions. The analysis underscores the need for a consistent and inclusive legal framework to address the rights of transgender individuals, emphasizing the potential for future Supreme Court intervention to establish uniform standards.

Constitutional Law And Values - Version '08 (Not Necessarily And Upgrade), Nadine Strossen

Articles & Chapters

No abstract provided.

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 …

Three Liberal - But Mistaken - Arguments For Same-Sex Marriage, Gerard V. Bradley

Journal Articles

From the Introduction

The constitutional argument for legally recognizing same-sex relationships as "marriages" is a straightforward non-discrimination claim: because there is no relevant difference between the capacity of same-sex couples and opposite-sex couples for marriage, restrictive laws arbitrarily withhold the recognition and benefits which legal marriage entails. If the statutory category - in this case, a couple's sex - does not contribute to the realization of any legitimate state goal, the law lacks a basis in reason. And, it is unconstitutional. As the Massachusetts Supreme Judicial Court concluded in Goodridge v. Department of Public Health, the state "failed to …

What's In A Name? A Philosophical Critique Of 'Civil Unions' Predicated Upon A Sexual Relationship, Gerard V. Bradley

Journal Articles

'Civil unions' represent a fragile political armistice, not lasting peace. My interest in 'civil unions' is not, however, political. It is philosophical. I argue in this paper that 'civil unions' are wrong - and should be abandoned in law - because they are incoherent. This article is about what's in the name, marriage. My thesis is that the reason why same-sex couples may not marry defeats the case for 'civil unions' defined (even in part) as a sexual relationship. To reasonably deny these couples access to marriage is to deny them access to 'civil unions'. Conversely, to create 'civil …

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 …

Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton

Faculty Publications

No abstract provided.

Love V. Virginia: The Constitutionality Of The Marshall/Newman Amendment, Pavitra Mohan Ram

ExpressO

My comment explores the constitutionality of a recent amendment in Virginia, the Marshall/Newman Amendment, which bans gay marriage and civil unions between unmarried people, and precludes Virginia from recognizing such arrangements formed in other states. The analysis is particularly timely, because even though the Democrats have regained a majority in Congress, and a traditionally Republican Virginian constituency just elected a Democratic senator, a majority of Virginians adopted this Amendment, indicating conservative values still reign.

The comment argues that the Amendment is demonstrably inconsistent with the mandates of the Fourteenth Amendment of the Federal Constitution. The first provision seeks to ban …

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

Loyola University Chicago Law Journal

No abstract provided.

Vertical Flip, 13 Tex. Wesleyan L. Rev. 729 (2007), Allen R. Kamp

UIC Law Open Access Faculty Scholarship

No abstract provided.

Same-Sex Loving:Subverting White Supremacy Through Same-Sex Marriage, Adele M. Morrison

Michigan Journal of Race and Law

This Article marks the 40th anniversary of Loving v. Virginia- the landmark decision that responded to the question of the constitutionality of anti-miscegenation laws by firmly stating that the fundamental right to marry could not be restricted by race-by taking up the issue of the case's applicability in the context of same-sex marriage. The invocation of Loving has generally been in a manner that invites comparisons between interracial and same-sex marriage. Pro same-sex marriage arguments that utilize this comparison-which has come to be known as the "Loving Analogy"-- include the decision's freedom of choice and antidiscrimination elements, but rarely …

Constitutional Law—First Amendment And Congress's Spending Clause Power—The Supreme Court's Supports Military Recruiters And The United States Military's Discrimination Against Homosexuals Despite Law Schools' Protests. Rumsfeld V. Forum For Academic & Institutional Rights, Inc., 126 S. Ct. 1297 (2006)., Matthew K. Brown

University of Arkansas at Little Rock Law Review

p> This note examines the forces in play leading up to the United States Supreme Court's decision in Rumsfeld v. Forum for Academic & Institutional Rights, Inc., a case in which the Court upheld a federal law conditioning the receipt of federal funding by law schools (and other institutions of higher learning) on those schools granting United States Military recruiters equal access to students, despite First Amendment claims brought by those schools. This note first explores the facts leading to the controversy that culminated in an appeal to the Supreme Court. Next, this note explores the background of the issues …

Civil Rights For Whom?: Gay Rights Versus Religious Freedom, George W. Dent Jr.

Kentucky Law Journal

No abstract provided.

Taking The Right To Abortion In Croatia Seriously - One Of The Basic Constitutional Rights Or A Rudiment Of The Right To Reproduction?, Dalida Rittossa

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Right To Contract: Use Of Domestic Partnership As A Strategic Alternative To The Right To Marry Same-Sex Partners, Dara Purvis

Faculty Scholarship

Shortly after the Civil War, a series of cases argued that the Civil Rights Act of 1866 gave black Americans the right to make contracts, including a marriage contract, with whomever they chose. While the cases were almost uniformly unsuccessful at that time, this paper argues that claims based on private contracts replicating some of marriage’s benefits, stripped of the social and religious freight of marriage, are more compelling. State constitutional amendments banning not only marriage, but any legal recognition of a marriage-like relationship, demonstrate that animus underlies the prohibitions and that the amendments violate the Equal Protection Clause even …

The Meaning Of “Life”: The Morning-After-Pill, The Question Of When Life Begins, And Judicial Review, Jason M. Horst

ExpressO

The Article foresees that certain state legislation limiting access to the morning-after-pill will thrust the question of when life begins onto the courts. This is due both to fact that the morning-after-pill has the potential to act at a point when the existence of potential life is in dispute and largely a matter of belief and to the fact that the constitutionality of the legislation may depend on whether courts consider the morning-after-pill abortion or contraception.

The Article argues that courts should address the question of whether to consider the morning-after-pill abortion or contraception by attempting to adopt and apply …

The Glucksberg Renaissance: Substantive Due Process Since Lawrence V. Texas, Brian Hawkins

Michigan Law Review

On their faces, Washington v. Glucksberg and Lawrence v. Texas seem to have little in common. In Glucksberg, the Supreme Court upheld a law prohibiting assisted suicide and rejected a claim that the Constitution protects a "right to die"; in Lawrence, the Court struck down a law prohibiting homosexual sodomy and embraced a claim that the Constitution protects homosexual persons' choices to engage in intimate relationships. Thus, in both subject matter and result, Lawrence and Glucksberg appear far apart. The Lawrence Court, however, faced a peculiar challenge in reaching its decision, and its response to that challenge brings …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Avoidance Strategy: Same-Sex Marriage Litigation And The Federal Courts, William C. Duncan

Campbell Law Review

This brief article examines the strategy of avoiding federal court review and federal constitutional claims for same-sex marriage. It first surveys the history of same-sex marriage litigation in the federal courts. It then turns to the question of why federal courts and claims have been avoided, identifying the most obvious explanation - a conscious strategic aim. The conclusions discussed in that section are exemplified in recent litigation in the Ninth Circuit. The article concludes with some comments on the policy implications of the strategy it describes.

“Actions As Words, Words As Actions: Sexual Harassment Law, The First Amendment And Verbal Acts, John F. Wirenius

ExpressO

The article examines the tension between the hostile work environment under the civil rights laws and the First Amendment’s protection of free speech, even when such speech is offensive and even discriminatory. After discussing the tension and its limits, the author examines other rationales proposed to resolve this tension, and rejecting them as unsatisfactory. Noting that hostile work environment doctrine, as a variable standard, employs a less “bright-line” approach than is typical of the First Amendment’s rule, the author nonetheless finds that the “open texture” of all rules, and the requirement that a hostile work environment be systematically pervasive or …

The Uncertain Future Of Marriage And The Alternatives, Daniel I. Weiner

ExpressO

The cultural and institutional predominance of marriage in our society has lately been challenged by two important social trends: growing dissatisfaction with or indifference to marriage on the part of those eligible to marry, and the emergence of nontraditional families headed by adults who may wish to marry but are presently excluded from doing so. This Essay argues that proactive law reformers have responded to these trends by taking two very different approaches. The first approach, “diversity of forms,” is exemplified by the cultivation of alternatives and substitutes to traditional marriage ranging from same and opposite-sex domestic partnerships and other …