Sexuality and the Law Commons^™

Carceral Apartheid: Centering State Responsibility For The Racial Order, Ion Meyn

Cardozo Law Review

Racial harms are often attributed to private ordering. But the power of White communities to subordinate communities of color is not a constellation of private acts independent of state violence. When scrutinized, acts of racial exclusion, segregation, and violence persist to the extent they are aligned with the political order and backed by the state’s violent guarantee. The knowledge that any resistance to these acts will be met with state retribution bristles in the background.

There are different ways in which state violence produces and reproduces the racial order: (1) direct violence; (2) a violent guarantee backing communal acts of …

Dignifying Queerness, Ryan Thoreson

Cardozo Law Review

In recent years, courts that have affirmed the right of lesbian, gay, bisexual, and transgender (LGBT) people to engage in same-sex activity have often invoked the value of dignity. They have done so in spite of the fact that same-sex activity, and many other kinds of sex, have historically been deemed undignified and subject to criminal prohibition. This Article examines a rapidly growing body of comparative jurisprudence to examine how dignity has become an unlikely cornerstone of efforts to decriminalize same-sex conduct. By invoking dignity, courts have persuasively struck down some of the most immediate and egregious restrictions on sexual …

Beyond Offense: Why The First Amendment Does Not Protect Deliberate Misgendering, Molly Dower

Cardozo Law Review

No abstract provided.

Lgbtq Youth And The Promise Of The Kennedy Quartet, Michael J. Higdon

Cardozo Law Review

The Supreme Court has only issued four opinions endorsing the constitutional rights of sexual minorities, each of them authored by Justice Anthony Kennedy. These four cases, which this Article refers to collectively as “the Kennedy Quartet,” have done much to advance the equality of LGBTQ adults in the United States. The question remains, however, as to what extent those cases likewise protect LGBTQ children. Far from simply being an academic question, this issue has taken on increased urgency as legislators in a number of states—thwarted by the Kennedy Quartet in their ability to target LGBTQ adults—have turned their attentions to …

Reproductive Justice And Transformative Constitutionalism, Cynthia Soohoo

Cardozo Law Review

No abstract provided.

Recovering The Race Analogy In Lgbtq Religious Exemption Cases, Kyle C. Velte

Cardozo Law Review

No abstract provided.

Policing The Painted And Powdered, Anthony Michael Kreis

Cardozo Law Review

Is homophobia also sexism?

This question was the focus ofpioneering scholarship nearly three decades ago and has been the subject ofreignited controversy because of litigation over marriage rights, employment discrimination, educational opportunities, fair housing, religious exemptions, and military service. Even though some courts, federal agencies, and state employment commissions have recognized that sexual orientation and gender identity discrimination are subsets ofsex discrimination, including the landmark Title VII decisions Hively v. Ivy Tech Community College and Zarda v. Altitude Express, academics, judges, andpublic administrators have been unable to articulate a plain theory ofsexual orientation discrimination as sexism. Without a straightforward theory …

Sexual Ageplay In Virtual Reality: Practicing Free Speech Or Producing Child Pornography?, Lillian Esposito

Cardozo Law Review

A man's thoughts are his own; he may sit in his armchair and think salacious thoughts, murderous thoughts, discriminatory thoughts, whatever thoughts he chooses, free from the "thought police." It is only when the man gets out of his armchair and acts upon his thoughts that the law may intervene

In my ignorance, I have to accept the possibility that if we had to decide today just what the First Amendment should mean in cyberspace, we would get it fundamentally wrong.

What's Wrong With Obergefell, Gregg Strauss

Cardozo Law Review

Although Obergefell v. Hodges was a historic victory for progressive constitutional law, the Supreme Court's glorification of marriage created widespread anxiety among progressive family law scholars. Yet, the critics have still not explained why this marriage rhetoric arouses such moral indignation. Some critics predict Obergefell's rhetoric will shape family and constitutional law in ways that harm nonmarital families, but these forecasts rely on weak doctrinal arguments and cynical speculation about judicial behavior. Others argue Obergefell's rhetoric was gratuitously insulting. Is that as deep as the objection goes?

Obergefell's glorification of marriage is wrong, not because it was …

Reorienting The Rules Of Evidence, Gillian R. Chadwick

Cardozo Law Review

Latent heterosexism is deeply engrained in the common sensibility of the American legal system. In sexual assault cases, that latent heterosexism reveals itself in disparate admissibility rulings and practices regarding evidence that purports to demonstrate a defendant's sexual orientation. When defendant and victim are of the same gender, evidence that a defendant is straight is used to prove innocence, while evidence that a defendant is gay or bisexual is used to prove guilt. This evidence is used to advance narratives invoking anti-gay and anti-bisexual stereotypes of deviance and criminality. Similar arguments are not made in cases involving opposite-gender defendant and …

Anchoring More Than Babies: Children's Rights After Obergefell V. Hodges, Susan Hazeldean

Cardozo Law Review

The Supreme Court's recent decision upholding a constitutional right to samesex marriage in Obergefell v. Hodges was a huge advance not just for LGBT Americans, but also for children. Obergefefl suggests children have a fundamental right to be raised by their parents without being demeaned or marginalized by the state. This has important implications for other vulnerable children, including U.S. citizen children with undocumented parents. This Article argues that deporting these children's parents contravenes their fundamental right to be raised by a loving parent, to equal protection of the law, and to remain in the United States as U.S. citizens. …

The Roberts Court And The New Textualism, Anton Metlitsky

Cardozo Law Review

The article explores the Roberts Court's approach to statutory interpretation, focusing on its adherence to the "new textualism," a methodology emphasizing the plain meaning of statutory text. While recent cases like King v. Burwell, Bond v. United States, and Yates v. United States appear to prioritize statutory purpose over textual meaning, the Court's reasoning reinforces its commitment to textualism by framing decisions within textualist methodology, even when outcomes seem to depart from strict textual interpretation.

Doe V. O'Donnell And New York's Sex Offender Registration Act: The Problem Of Continued Registration Under Sora After Leaving The State, Samantha R. Millar

Cardozo Law Review

No abstract provided.

The Vicious Cycle Of Hate: Systemic Flaws In Hate Crime Documentation In The United States And The Impact On Minority Communities, Harbani Ahuja

Cardozo Law Review

No abstract provided.

Confining Control: Narrowing The "Control" Standard Under New York's Mental Hygiene Law Article 10, Michael Maizel

Cardozo Law Review

No abstract provided.

Constitutional Constraints On Asylum Termination By The United States Department Of Homeland Security, Jonathan Raz

Cardozo Law Review

No abstract provided.

Gay Panic, Gay Victims, And The Case For Gay Shield Laws, J. Kelly Strader, Molly Selvin, Lindsey Hay

Cardozo Law Review

In a highly publicized "gay panic" case, Brandon McInerney shot and killed Larry King in their middle school classroom. King was a self-identified gay student who sometimes wore jewelry and eye makeup to school and, according to those who knew him, was possibly transgender. Tried as an adult for first-degree murder, McInerney asserted a heat of passion defense based upon King's alleged sexual advances. The jury deadlocked, with a majority accepting McInerney's defense.

Drawing largely upon qualitative empirical research, this Article uses the Larry King murder case as a prism though which to view the doctrinal, theoretical, and policy bases …

Employer Perceptions Of Trans Women's Sex And Behavior In Title Vii Sex Stereotyping Claims: The Case For Reading Price Waterhouse V. Hopkins As A Blanket Prohibition Of Gender Policing By Employers, Alexandra Fiona Mcspedon

Cardozo Law Review

No abstract provided.

Contempt, Status, And The Criminalization Of Non-Conforming Girls, Cynthia Godsoe

Cardozo Law Review

No abstract provided.

No Promo Hetero: Children's Right To Be Queer, Clifford J. Rosky

Cardozo Law Review

This Article argues that the state has no legitimate interest in promoting heterosexuality or gender conformity during childhood. Although opponents of LGBT rights have longed cited this goal as one of the primary justifications for discrimination against LGBT people, it has no constitutional foundation upon which to stand.

Building upon a schema familiar to legal scholarship on LGBT rights, this Article challenges the state's interest in promoting heterosexuality in childhood by articulating a tripartite defense of children's homosexual speech, status, and conduct. It argues that these three aspects of children's homosexuality are connected to and protected by the Constitution's free …

Fantasies And Illusions: On Liberty, Order, And Free Markets, Bernard E. Harcourt

Cardozo Law Review

No abstract provided.

Brand Counterfeiting: Mass Fetishism?, Geneviève Morel

Cardozo Law Review

No abstract provided.

Plaintiff Anonymity During Civil Litigation Of Childhood Sexual Abuse Cases, Amit Shertzer

Cardozo Law Review

No abstract provided.

Restoring Restitution: The Role Of Proximate Causation In Child Pornography Possession Cases Where Restitution Is Sought, Dennis F. Dibari

Cardozo Law Review

No abstract provided.

The Politics Of Free Exercise After Employment Division V. Smith: Same-Sex Marriage, The "War On Terror," And Religious Freedom, Richard Schragger

Cardozo Law Review

No abstract provided.

Odious Discrimination And The Religious Exemption Question, Laura S. Underkuffler

Cardozo Law Review

No abstract provided.

The Waterloo For The So-Called Church Autonomy Theory: Widespread Clergy Abuse And Institutional Cover-Up, Marci A. Hamilton

Cardozo Law Review

No abstract provided.

The Right To Marry, Cass R. Sunstein

Cardozo Law Review

The Supreme Court has said that there is a constitutional "right to marry"; but what can this possibly mean? People do not have a right to marry their dog, their aunt, June 29, a rose petal, or a sunny day. This essay attempts to make some progress in understanding both the content and the scope of the right to marry. With respect to content, it concludes that people have no more and no less than this: a right of access to whatever expressive and material benefits the state now provides for the institution of marriage. It follows that the right …

Criminal Statutes Of Limitations: An Obstacle To The Prosecution And Punishment Of Child Sexual Abuse, Jodi Leibowitz

Cardozo Law Review

No abstract provided.

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

Cardozo Law Review

No abstract provided.