Sexuality and the Law Commons^™

Screening Historical Sexualities: A Roundtable On Sodomy, South Africa, And Proteus, Noa Ben-Asher, R. Bruce Brasell, Daniel Garrett, John Greyson, Jack Lewis, Susan Newton-King

Faculty Publications

(Excerpt)

Proteus (2003; 100 min., Canada and South Africa) is a low-budget feature film, directed by John Greyson (Toronto) and Jack Lewis (Cape Town), that made the international rounds of “art cinema” and queer festivals in 2003 and 2004, with limited theatrical release in New York, Toronto, and other cities. The film advances Greyson’s and Lewis’s experiments with political essay-narrative forms both in their respective documentary, experimental, and dramatic videos dating back to the early 1980s (including Lewis’s Apostles of Civilized Vice [1999]) and in Greyson’s theatrical feature films beginning with Urinal in 1988. Based on an early-eighteenth-century court record, …

Textual Harassment: A New Historicist Reappraisal With Gender In Mind, Hila Keren

ExpressO

No abstract provided.

Sex, Lies, And Clients: From Bill Clinton To Oscar Wilde, Steven Lubet

ExpressO

No abstract provided.

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

Textual Harassment: A New Historicist Reappraisal, Hila Keren

ExpressO

This year marks the four hundredth anniversary of the Parol Evidence Rule, the rule that dictates that the interpretation of a written contract should be determined solely according to its text and not influenced by prior contradictory external information. This article uses the occasion to offer a fresh interdisciplinary view of the Rule. The analysis presents a unique contribution to the heated debate regarding the desired levels of formalism and textualism in present-day contract law, by using New-Historicist tools.

Unexplored aspects of the roots of the Rule are illuminated through an in-depth investigation of the first case of the contractual …

Sexual Orientation And The Paradox Of Heightened Scrutiny, Nan D. Hunter

Michigan Law Review

In Lawrence v. Texas, the Supreme Court performed a double move, creating a dramatic discursive moment: it both decriminalized consensual homosexual relations between adults, and, simultaneously, authorized a new regime of heightened regulation of homosexuality. How that happened and what we can expect next are the subjects of this essay. The obvious point of departure for an analysis of Lawrence is its decriminalization of much sexual conduct. Justice Scalia began this project with his dire warning that "[s]tate laws against bigamy, samesex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are . . . sustainable only in …

Lawrence V. Texas And Judicial Hubris, Nelson Lund, John O. Mcginnis

Michigan Law Review

The republic will no doubt survive the Supreme Court's decision, in Lawrence v. Texas, to invalidate laws against private, consensual sodomy, including those limited to homosexual behavior. Such laws are almost never enforced, and the rare prosecutions for such acts are necessarily capricious. So the principal direct effect of the Court's decision is likely to be extremely limited, and largely salutary: a few individuals will be spared the bad luck of getting a criminal conviction for violating laws that are manifestly out of step with prevailing sexual mores. Nor are we likely to see anything like the intense political …

Surviving Lawrence V. Texas, Marc Spindelman

Michigan Law Review

The lesbian and gay communities have reacted to the Supreme Court's decision in Lawrence v. Texas - striking down state sodomy laws on Due Process grounds - with unbridled enthusiasm. Lawrence has variously been praised as an unmitigated victory for lesbian and gay rights, a turning point in our community's history, and the moment when we have gone from second-class political outcasts to constitutional persons with first-class rights. Obviously, something remarkable happened in Lawrence. In an opinion written by Justice Anthony Kennedy, the Court declared that John Geddes Lawrence and Tyrone Gamer, who had been convicted under Texas's sodomy …

The Unknown Past Of Lawrence V. Texas, Dale Carpenter

Michigan Law Review

On the night of September 17, 1998, someone called the police to report that a man was going crazy with a gun inside a Houston apartment. When Harris County sheriff's deputies entered the apartment they found no person with a gun but did witness John Lawrence and Tyron Gamer having anal sex. This violated the Texas Homosexual Conduct law, and the deputies hauled them off to jail for the night. Lawyers took the men's case to the Supreme Court and won a huge victory for gay rights. So goes the legend of Lawrence v. Texas. Do not believe it. …

Rebuilding The Closet: Bowers V. Hardwick, Lawrence V. Texas, And Themismeasure Of Homosexual Historiography, Jody Madeira

Richmond Journal of Law and the Public Interest

This paper acknowledges that "[i]t is now commonplace to disparage the Hardwick Justices' performance as historians, though it is less common to specify what was wrong with it''. In an effort to engage in such specification, this paper will first address mischaracterization of history in Bowers, which portrays the historic legal and ecclesiastical penalties of what the Court labels as "homosexual activities" as a continuous, unitary narrative extending from the halls of the Emperors Theodosius and Justinian to the legislative assembly rooms of Georgia and Texas. This illusory perspective portrays the criminalization of sodomy (and therefore the identity of homosexuality …

Rebuilding The Closet: Bowers V. Hardwick, Lawrence V. Texas, And The Mismeasure Of Homosexual Historiography, Jody Madeira

Richmond Public Interest Law Review

This paper acknowledges that "[i]t is now commonplace to disparage the Hardwick Justices' performance as historians, though it is less common to specify what was wrong with it''. In an effort to engage in such specification, this paper will first address mischaracterization of history in Bowers, which portrays the historic legal and ecclesiastical penalties of what the Court labels as "homosexual activities" as a continuous, unitary narrative extending from the halls of the Emperors Theodosius and Justinian to the legislative assembly rooms of Georgia and Texas. This illusory perspective portrays the criminalization of sodomy (and therefore the identity of homosexuality …

Challenging Dissent: The Ontology And Logic Of Lawrence V. Texas, Jami Weinstein, Tobyn Demarco

Cardozo Journal of Equal Rights & Social Justice

The article examines the Supreme Court's decision in Lawrence v. Texas, which invalidated a Texas antisodomy statute criminalizing homosexual conduct. The Court held that the statute failed rational basis review and rejected the promotion of majoritarian sexual morality as a legitimate state interest. The decision reflects a broader recognition of the fundamental right to make autonomous, private, consensual, adult sexual choices. The analysis critiques Justice Scalia's dissent, arguing that his fears about the end of morals legislation are unfounded and that laws based solely on moral disapproval lack a rational basis.

Monogamy's Law: Compulsory Monogamy And Polyamorous Existence, Elizabeth F. Emens

Faculty Scholarship

Right now, marriage and monogamy feature prominently on the public stage. Efforts to lift prohibitions on same-sex marriage in this country and abroad have inspired people on all sides of the political spectrum to speak about the virtues of monogamy's core institution and to express views on who should be included within it. The focus of this article is different. Like an "unmannerly wedding guest," this article invites the reader to pause amidst the whirlwind of marriage talk and to think critically about monogamy and its alternatives.

"On The Chastity Of Women All Property In The World Depends" : Injury From Sexual Slander In The Nineteenth Century, Lisa R. Pruitt

Indiana Law Journal

In this Article, Professor Pruitt discusses conceptions of the injury associated with defamation law, focusing in particular on sexual slander cases that were brought in the early nineteenth century, before statements that impugned a woman's chastity were deemed slander per se. During this time, women had to prove so-called "special damages" in order to state a cause of action. Courts showed some flexibility in what they recognized as constituting "special damages," even stretching to recognize pecuniary harm in damaged personal relationships. Nevertheless, courts refused to recognize injuries stemming from and related to emotional distress injuries, and they were often skeptical …

Oblivion Of Crime As Crime Of Oblivion, Néstor A. Braunstein

Cardozo Law Review

No abstract provided.

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.

The Quandary Of Megan's Law: When The Child Sex Offender Is A Child, 37 J. Marshall L. Rev. 73 (2003), Timothy E. Wind

UIC Law Review

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 …

Marriage And Belonging, Ann Laquer Estin

Michigan Law Review

Marriage is a quintessentially private institution. Justice Douglas put the point this way in 1965, writing for the Supreme Court in Griswold v. Connecticut: "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association …

Finding Gold In The Rainbow Rights Movement, Shayna S. Cook

Michigan Law Review

In her history of the past fifty years of the gay and lesbian civil rights movement, Patricia Cain recounts the litigation successes and failures that contributed to the legal status of gays and lesbians in the Untied States today. Clearly an insider who has marched with the movement every step of the way, Cain provides a comprehensive account of all fronts of the battle in state and federal courts since 1950. But while Rainbow Rights serves as a good primer on the legal challenges and the key themes uniting them, the book reads like an account of a struggle ending …

Why Do They Strike Us?, James Polchin

Center for LGBTQ Studies (CLAGS)

Over the past two years since the brutal murder of Matthew Shepard in Laramie Wyoming, the circumstances of his death have held a symbolic place in the story of violence against gay men and lesbians nationally. University of Wyoming Professor Beth Loffreda's book Losing Matt Shepard: Life and Politics in the Aftermath of Anti-Gay Murder is on the "Lambda Book Report" best-sellers list and MTV has recently premiered "Anatomy of a Hate Crime: The Matthew Shepard Story" that dramatized the events of October 6th, 1998. The telling and retelling of Shepard's murder in both academic books and popular culture suggests …

Franco's Spain, Queer Nation?, Gema Pérez-Sánchez

University of Michigan Journal of Law Reform

This Article discusses how, through its juridical apparatus, the Spanish dictatorship of Francisco Franco sought to define and to contain homosexuality, followed by examples of how underground queer activism contested homophobic laws. The Article concludes by analyzing a literary work to illustrate the social impact of Francoism's homophobic law against homosexuality.

Querying A Queer Spain Under Franco, Peter Kwan

University of Michigan Journal of Law Reform

There should be more articles in the legal journals such as Professor Gema Pérez-Sánchez's. In Franco's Spain, Queer Nation?, Professor Pérez-Sánchez has done a great service to legal scholarship in four respects. Firstly, she has written an appropriately far-ranging piece. In a discipline that has as one of its central missions the broadening of critical legal discourse, LatCrit can sometimes appear to suffer from symptoms of parochialism in its understandable emphasis on the Latina/o experience within American borders, or on the experience of its Latina/o immigrants once they have reached these shores. To be sure, this is not a problem …

Hegemony, Coercion, And Their Teeth-Gritting Harmony: A Commentary On Power, Culture, And Sexuality In Franco's Spain, Ratna Kapur, Tayyab Mahmud

University of Michigan Journal of Law Reform

Professor Gema Pérez-Sánchez's article, Franco's Spain, Queer Nation? focuses on the last years of Francisco Franco's fascist dictatorship and the early years of the young Spanish democracy, roughly from the late 1960's to the early 1980's. The centerpiece of her article looks at how, through law, Franco's regime sought to define and contain what it considered dangerous social behavior, particularly homosexuality. She traces how the state not only exercised hegemonic control over definitions of gender and sexuality, but also established well-defined roles for women and drew clear lines between what constituted legitimate and illegitimate sexualities, namely, the line between heterosexuality …

Bitch V. Whore: The Current Trend To Define The Requirements Of An Actionable Hostile Environment Claim In Verbal Sexual Harassment Cases, 33 J. Marshall L. Rev. 465 (2000), Jamie Lynn Cook

UIC Law Review

No abstract provided.

History Unbecoming, Becoming History, Toni M. Massaro

Michigan Law Review

The last few decades have seen a torrent of legal commentary supporting gay equality and attacking the punishment, failure to protect, and refusal to affirm gay conduct and identity. William Eskridge, a prominent voice in this fin-de-siecle literature, now draws together and expands on his previous work in Gaylaw: Challenging the Apartheid of the Closet. Though far more successful in shaping the uses of the past than in showing the way to the future, the book instructs even where it fails. It augurs a century that could well witness the end of official discrimination against gay individuals, and the relegation …

Out Yet Unseen: A Racial Critique Of Gay And Lesbian Legal Theory And Political Discourse, Darren Lenard Hutchinson

UF Law Faculty Publications

No abstract provided.

Sleeping With The Enemy: Combatting The Sexual Spread Of Hiv-Aids Through A Heightened Legal Duty, 29 J. Marshall L. Rev. 957 (1996), Eric L. Schulman

UIC Law Review

No abstract provided.

An Introduction To The Symposium, William G. Eckhardt

Faculty Works

Professor William Eckhardt introduces the ideas which initiated planning for and later emanated from UMKC School of Law Symposium “Don't Ask, Don't Tell-Implementation and Litigation.” As the title suggests, the Symposium examined the complex and important issues surrounding the policy of the United States toward gays and lesbians in the Armed Forces. This community­wide event was centered in the UMKC Law School Courtroom on the evening of April 11, 1995.

The idea for this Symposium was conceived by Professor Samuel A. Marcosson, a senior attorney in the Office of General Counsel of the Federal Equal Employment Opportunity Commission. It was …

The Constitution Of The People: Frederick Douglass And The Dred Scott Decision, Robert Bernasconi

Cardozo Law Review

No abstract provided.