Sexuality and the Law Commons^™

The Asexual Assumption, Faith K. Whatley-Blaine, Michael S. Sinha

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Inclusion-focused dating shows such as ‘Love on the Spectrum’ feature individuals with developmental or neurological disabilities on a quest for love. Despite the focus on disability representation, these shows perpetuate stigma against the disabled community by fostering an infantilizing portrayal of individuals with disabilities. This portrayal undermines the premise of encouraging meaningful romantic relationships and reinforces the stigmatizing association of asexuality with disability. This framing aligns with the broader societal narrative that individuals with disabilities are incapable of or lack interest in participating in romantic relationships or physical intimacy.

The stigma that associates asexuality with disability extends beyond mere entertainment, …

Second-Tier Marriages, Jeremiah A. Ho

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This Essay interrogates the reasoning behind the retrenchment toward LGBTQ rights progress that has taken place since marriage equality. With marriage rights for same-sex couples now "on the books," the Supreme Court's treatment of same-sex couples in both Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n and 303 Creative LLC v. Elenis reveals the status quo's hesitancy to recognize same-sex relationships on equal footing. Retrenchment, however, only describes the moment itself; it alludes to but offers no comprehensive or satisfying theory that identifies the motives behind the moves. This Essay theorizes from within the context of the Supreme Court's LGBTQ …

Colonizing Queerness, Jeremiah A. Ho

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This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives …

Infinite Queerness And American Settler Colonialism, Jeremiah A. Ho

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In Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes For Racial Reform, the late Derrick Bell refined his theory of racial progress in the United States by merging his interest convergence and racial sacrifice theses into a theoretical “two-sided coin” he called “racial fortuity.”¹  Bell’s original interest convergence thesis posited that racial progress for Blacks would only occur if their interests in obtaining equality for themselves and the interests of the dominant White establishment in granting such equality “converged.”²  This theory famously underpinned Bell’s interpretation of Brown and the Supreme Court’s eagerness to overturn …

Male Same-Sex "Horseplay": The Epicenter Of All Sexual Harassment?, Kimberly Bailey

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In Oncale v. Sundowner Offshore Services, Inc., the U.S. SupremeCourt recognized same-sex sexual harassment as a cognizable claim of sex discrimination under Title VII of the Civil Rights Act of 1964. At the time, many scholars found this recognition to be significant andimportant, but some also argued that the Court provided an incomplete analysis regarding the meaning of discrimination “because of sex.” Specifically, some scholars argue that the Court’s opinion reinforces the sexual desire paradigm in the analysis of sexual harassment cases. Building upon this critique, this Article focuses specifically on the harassment of men who generally are perceived as …

Queering Bostock, Jeremiah A. Ho

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Although the Supreme Court’s 2020 Title VII decision, Bostock v. Clayton County, Georgia, is a victory for LGBTQ individuals, its doctrinal limitations unavoidably preserve a discriminatory status quo. This Article critically examines how and why Bostock fails to highlight the indignities experienced by queer minorities under decades of employment discrimination. In Bostock, Justice Gorsuch presents a sweeping textualist interpretation of Title VII that protects against sexual orientation and gender identity discrimination. Yet, the decision sparsely recognizes queer lived experiences, compared to prior pro-LGBTQ cases where such recognition contributed to developing an anti-stereotyping framework that confronted some of the heteronormative biases …

Queer Sacrifice In Masterpiece Cakeshop, Jeremiah A. Ho

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This Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and the Court’s …

A Fresh Look At Title Vii: Sexual Orientation Discrimination As Sex Discrimination, Anthony Michael Kreis

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Since 2006, the Illinois Human Rights Act has prohibited discrimination in employment because of an employee’s sexual orientation or gender identity. Until 2017, employees discriminated against because of their sexual orientation had no federal cause of action, however. In a landmark decision, Hively v. Ivy Tech, the Court of Appeals for the Seventh Circuit became the first appellate court to hold that federal law’s prohibition of sex discrimination in the workplace also proscribed sexual orientation discrimination. The Hively decision is a substantial departure from decades’ worth of Seventh Circuit precedent and created a split between the circuits. This Article examines …

Against Gay Potemkin Villages: Title Vii And Sexual Orientation Discrimination, Anthony Michael Kreis

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Should Title VII allow employers to invoke a “love the sin, hate the sinner” defense to escape liability for firing lesbians, gays, and bisexuals? According to one prominent federal judge, the answer is “yes.”This Essay examines federal judges’ evolving and correct recognition that sexual orientation discrimination claims are colorable under Title VII’s existing framework. The Essay compares the arguments concerning the actionability of sexual orientation claims laid forth in the Second Circuit (Christiansen v. Omnicom), the 7th Circuit (Hively v. Ivy Tech), and the Eleventh Circuit (Evans v. Georgia Regional Hospital).The Essay argues against the position taken by one member …

Stages Of Constitutional Grief: Democratic Constitutionalism And The Marriage Revolution, Anthony Michael Kreis

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Do courts matter?Historically, many social movements have turned to the courts to help achieve sweeping social change. Because judicial institutions are supposed to be above the political fray, they are sometimes believed to be immune from ordinary political pressures that otherwise slow down progress. Substantial scholarship casts doubt on this romanticized ideal of courts. This Article posits a new, interactive theory of courts and social movements, under which judicial institutions can legitimize and fuel social movements, but outside actors are necessary to enhance the courts’ social reform efficacy. Under this theory, courts matter and can be agents of social change …

Quacking Like A Duck? Functional Parenthood Doctrine And Same-Sex Parents, Katharine Baker

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Part I of this article introduces the tension between constitutionally protected parental autonomy rights and functional parent doctrine by examining the constitutional rights of parents. This examination demonstrates how the marital status of a parent has a substantial impact on the strength of that parent's constitutional rights. In cases in which there are two unmarried (never married or divorced) parents, neither parent has particularly robust constitutionally protected autonomy rights because both parents have competing constitutional rights that must be balanced against each other. Each parent has the right to invoke a court's jurisdiction in vindication of his or her own …

Campus Misconduct, Sexual Harm And Appropriate Process: The Essential Sexuality Of It All, Katharine Baker

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No abstract provided.

Find Out What It Means To Me: The Politics Of Respect And Dignity In Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

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This accompanying article considers the state of LGBTQ equality after the Supreme Court’s decision in Obergefell v. Hodges in 2015. Specifically, by examining this upsurge of social visibility for same-sex couples as both acceptance of sexual minorities and cultural assimilation, the article finds that the marriage cases at the Supreme Court — Obergefell and U.S. v. Windsor — shifted the framing of gay rights from the politics of respect that appeared more than a decade ago in Lawrence v. Texas toward a politics of respectability. The article traces this regression in Justice Kennedy’s own definition of dignity from Lawrence, where …

Once We're Done Honeymooning: Obergefell V. Hodges, Incrementalism, And Advances For Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

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Undoubtedly, the Supreme Court’s marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since U.S. v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the U.S. was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQ movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell can somehow leverage …

A Home With Dignity: Domestic Violence And Property Rights, Margaret E. Johnson

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This Article argues that the legal system should do more to address intimate partner violence and each party's need for a home for several reasons. First, domestic violence is a leading cause of individual and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides to continue to live with the person who abused her receives little or no legal support, despite the evidence that this decision could most effectively reduce the violence. The legal system's current failings result from its limited goals-achieving …

Weather Permitting: Incrementalism, Animus, And The Art Of Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

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Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animus-focused jurisprudence for lifting the discrimination against the …

The Virtue Of Obscurity, Colin Starger

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The critics have panned Justice Kennedy’s majority opinion in United States v. Windsor. Supporters and opponents of same-sex marriage have together bemoaned what may be called Kennedy’s “doctrinal obscurity” in Windsor. Doctrinal obscurity describes the opinion’s failure to justify striking down Section 3 of the Defense of Marriage Act (DOMA) using any discernable accepted test for substantive due process or equal protection. Specifically, Kennedy does not ask whether DOMA burdens a right “deeply rooted in this Nation’s history and tradition,” nor does he identify sexual orientation as a suspect or semi-suspect classification, nor does he subject DOMA to explicit rational …

A Visual Guide To United States V. Windsor: Doctrinal Origins Of Justice Kennedy’S Majority Opinion, Colin Starger

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After finding the Court had jurisdiction, Justice Kennedy’s majority opinion in United States v. Windsor reached the merits and concluded that the Defense of Marriage Act (DOMA) was in violation of the Fifth Amendment. In his dissent, Justice Scalia attacked the majority’s doctrinal reasoning on the merits as “nonspecific handwaving” that invalidated DOMA “maybe on equal-protection grounds, maybe on substantive due process grounds, and perhaps with some amorphous federalism component playing a role.”

This Visual Guide is a “doctrinal map” that responds to Scalia’s accusation by charting the doctrinal origins of Justice Kennedy’s majority opinion. Specifically, the map shows how …

Strange Traffic: Sex, Slavery & The Freedom Principle, Anders Walker

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This article uses the recent prosecution of a sex trafficking case in rural Missouri to argue three points. One, the federal law of trafficking is currently being used in unanticipated ways, including the apprehension of individuals who pay for sex. Two, trafficking invites creative use precisely because it provides prosecutors with a more salient justification for punishment than either legal moralism or harm; a rhetorical plea to anti-slavery that enjoys a longstanding but under-theorized role in criminal law rhetoric. Three, anti-slavery’s recurrence in criminal law rhetoric underscores a larger doctrinal point, namely that H.L.A. Hart’s version of the harm principle …

The Stories Of Marriage, Katharine K. Baker

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The gay and lesbian community's response to California's Proposition 8 was strong and quick. Within days of the 2008 election, opponents of the measure had targeted its proponents, in particular the Mormon Church, as subjects for scorn. Singling out the Mormon Church on this issue was particularly ironic because to the extent that members of the Mormon Church were responsible for the success of Proposition 8, they simply did to the gay community what courts of the United States consistently did to their forebears: defined away their right to marry. In striking down individuals' rights to enter into polygamous marriages, …

Significant Statistics: The Unwitting Policy Making Of Mathematically Ignorant Judges, Michael I. Meyerson, William Meyerson

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This article will explore several areas in which judges, hampered by their mathematical ignorance, have permitted numerical analysis to subvert the goals of our legal system. In Part II, I will examine the perversion of the presumption of innocence in paternity cases, where courts make the counter-factual assumption that regardless of the evidence, prior to DNA testing, a suspect has a 50/50 chance of being the father. In Part III, I will explore the unnecessary injection of race into trials involving the statistics of DNA matching, even when race is entirely irrelevant to the particular case. Next, in Part IV, …

Foreword, Byron L. Warnken

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No abstract provided.

How To Succeed In Business Without Really Trying (Cases): Gender Stereotypes And Sexual Harassment Since The Passage Of Title Vii, Miriam A. Cherry

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This Article, which is part of a symposium on the 40th Anniversary of Title VII appearing in the Hofstra Labor and Employment Law Journal, evaluates the progress of women in the workforce by critically analyzing the musical "How to Succeed in Business Without Really Trying." Written in the early 1960s and made into a 1967 movie, How to Succeed follows the adventures of J. Pierrepont Finch, a window washer who, with the aid of a sarcastic self-help book, schemes his way up the corporate ladder. It also includes the sexual exploits of the exclusively male executive corps among the female …

The Glass Ceiling In Law Firms: A Form Of Sex-Based Discrimination, Rebecca Korzec

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At a certain level, women lawyers collide with a "glass ceiling," an invisible, artificial barrier which prevents women from being promoted to management and leadership positions within a business or firm. The glass ceiling 'represents a subtle form of sex discrimination - unwritten, generally unspoken, but very pervasive.' Its presence is reflected in trends and statistics which consistently reveal women's underrepresentation in executive and management positions.

This article focuses on whether the glass ceiling formed as a result of sex discrimination, blatant or subtle, or whether it formed as a result of women lawyers' differing qualifications or career choices. It …

Reproducing A Fit Citizenry: Dependency, Eugenics, And The Law Of Marriage In The United States, Matthew Lindsay

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Between the Gilded Age and the Progressive Era, American state legislatures enacted a series of new laws that delineated a class of citizens who were deemed ineligible to participate in the institution of marriage. Scholars have characterized this development as evidence that lawmakers had lost faith in a laissez-faire approach to nuptial governance, and thus transformed marriage into an object of public regulation. This essay argues that behind the ostensible nuptial privatism of the mid-nineteenth century lay a self-conscious policy. of judicial governance. Judges invoked the language of nuptial privacy and the common law of contract strategically to advance their …

Writing Rules Does Not Right Wrongs, Odeana R. Neal

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I believe the work that lawyers, legal academics, and judges do is important. Our work allows us to devise legal theories, develop litigation strategies and determine outcomes that can make a tremendous difference in people's lives. As a result, I applaud the insight and creativity of Judge Beck and Professors Glennon and Goldfarb. Their work demonstrates how law can be used to protect gay men, lesbians, bisexuals, their relationships and their families.

Free Speech Faces Hostile Environment: An Aggressive Hunt For Sex Harassment Leaves Plenty Of Wreckage, Kenneth Lasson

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Take the case of James Maas, who has been teaching at Cornell University for more than 30 years and whose Psychology 101 is perhaps the largest undergraduate course in the country (attracting about 1,000 students every semester). He was won numerous teaching awards. In 1994, Mr. Maas was called before Cornell's "Professional Ethics Committee" to defend himself against charges of sexual harassment. The allegations centered around his "overly friendly and affectionate behavior" - which, it turns out, were hugs and occasional social kisses, most often in front of class or family.

The most notable example of a professor who stood …

The Limits Of Legal Discourse: Learning From The Civil Rights Movement In The Quest For Gay And Lesbian Civil Rights, Odeana R. Neal

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The African-American struggle for civil rights has been a long one, one that began with the importation of the first black person into the country as a slave, and continues today. Through radical political struggle coupled with legal precedent, de jure segregation became a part of the past of the United States. Meticulous legal strategizing by the NAACP Legal Defense Fund culminated with the Supreme Court's decision in Brown v. Board of Education, which declared unconstitutional the governmental practice of segregating on the basis of race. Careful legislative lobbying—as well as the threats posed by radical black political groups who …

Love Speech: The Social Utility Of Pornography, Jeffrey G. Sherman

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No abstract provided.

A Unified Approach To Causation In Disparate Treatment Cases: Using Sexual Harassment By Supervisors As The Causal Nexus For The Discriminatory Motivating Factor In Mixed Motive Cases, Margaret E. Johnson

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This Comment examines a unified approach for disparate treatment mixed motives claims paired with sexual harassment claims under Title VII. The Author argues that because of the policy for nondiscriminatory and desegregated work environments embodied in Title VII, and because of the documented harm resulting from sexual harassment, courts should allow the burden of proof to shift to the defendant if the plaintiff demonstrates that her supervisor sexually harassed her, or condoned the harassment, and that the harassing supervisor made an employment decision that was adverse to her.