Sexuality and the Law Commons^™

Valuing All Families: An Introduction To The 2008 Santa Clara Law Review Symposium, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

The family has changed over time, as has the law concerning families and relationships. Thank goodness. Until recent decades, the law punished nonmarital sex, delineated separate spheres for men and women, and restricted the grounds for ending marriage. The sexual revolution, feminism, and the demand for divorce were the social phenomena that facilitated these changes. Today we take for granted that marriage is not the right dividing line for the rights and obligations of parents. We now must revise our laws to protect the economic security and emotional peace of mind of the full variety of today's families and relationships.

“A Painful Process Of Waiting”: The New York, Washington, New Jersey, And Maryland Dissenting Justices Understand That “Same-Sex Marriage” Is Not What Same-Sex Couples Are Seeking, Barbara Cox

Faculty Scholarship

This essay focuses on the recent decisions by the highest courts of four states rejecting the claims of individuals in same-sex relationships that they must be permitted to marry the partner of their choice. In the cases of Hernandez v. Robles, Andersen v. King County, Lewis v. Harris, and Conaway v. Deane, a majority or plurality of each court determined that the bans preventing individuals in same-sex couples from marrying were constitutional. Understanding these cases is particularly important as additional state supreme courts address the cases of similar plaintiffs pending before them.

Chaos, Law, And God: The Religious Meanings Of Homosexuality, Jay Michaelson

Michigan Journal of Gender & Law

This Article argues that the religious meaning of homosexuality cannot be explained merely in terms of homophobia, "church and state," or traditional values versus progressive ones. Rather, the regulation of sexuality has a particular religious meaning: sexuality is a primary site in which religious law is engendered, where the lawfulness of religion meets the chaos beyond it. Whether in Biblical times or today, changing the way sexuality is regulated is a threat to the notion of order itself, as construed by Jewish and Christian religion. Arguments about gay rights, same-sex marriage, and related issues are not merely arguments informed by …

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 …

Introduction: The Florida Example, 32 Nova L. Rev. 515 (2008), Anthony Niedwiecki, William E. Adams

UIC Law Open Access Faculty Scholarship

No abstract provided.

Bionormativity And The Construction Of Parenthood, Katharine K. Baker

Georgia Law Review

This Article explores the relationship between legal and biological parenthood. It examines how neither history, nor biology, nor moral philosophy dictate a legal regime in which parenthood must be based on biological connection, but that attractionto a biological (or"bionormative")regime remains strong. In explaining why, it suggests that much of what attracts people to bionormativity is not biology itself, but the way in which a biological regime constructs parenthood as a private, exclusive, and binary enterprise. It is these ancillary qualities of bionormativity that people may care the most about. Today, a variety of forces put pressure on these ancillary qualities …

"Insuring" Quality: Restrictions On Legislative Control Of Partner Benefits At Kentucky's Public Universities, Jacinta Feldman Manning

Kentucky Law Journal

No abstract provided.

Expedited Partner Therapies For Sexually Transmitted Diseases: Legal And Policy Approaches, James G. Hodge, Erin C. Fuse Brown

Faculty Publications By Year

No abstract provided.

Rhetorical Atavism And The Narrative Of Progress In The Debate Over Marriage Equality, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

A Woman’S Right To Be Spanked: Testing The Limits Of Tolerance Of S/M In The Socio-Legal Imaginary, Ummni Khan

Studio for Law and Culture

What conditions must be in place for s/m sexuality to be tolerated in law and culture? In this article, I consider the film Secretary as a lens to explore the imaginative limits of our socio-legal culture regarding sadomasochism. In Part One, I compare Secretary to the film 9 ½ weeks. I deconstruct the narrative and aesthetic components of the two films that uphold their contrasting normative visions, arguing that Secretary did indeed chart new ground for the sadomasochist sexual subject. Yet, a close discursive analysis reveals that the narrative relied upon other hegemonies to make the s/m couple acceptable and …

Recruiting Sexual Minorities And People With Disabilities To Be Dean, Joan W. Howarth

Scholarly Works

As our day-to-day work lives make abundantly clear, a law faculty is a many-headed creature: an assortment of people with a variety of interests, strengths, foibles, personalities, and identities. Within the legal academy, a dominant consensus acknowledges that a strong faculty embodies diversity along multiple axes, including, for example, race, gender, religion, age, political ideology, research and teaching methodologies, and subject matter expertise.

The dean, however, stands alone, and stands above. Thus, issues of expectation, representation, comfort with and fear of difference operate quite differently when deans are selected, and when they do their jobs. The dean exercises authority over …

The Geronimo Bank Murders: A Gay Tragedy, Joan W. Howarth

Scholarly Works

The Geronimo Bank Murders examines the intersection of homosexuality and capital punishment through the lenses of cultural criticism, queer theory, and legal analysis. The paper's subject is Jay Neill, who was executed in 2002 for murdering four people in a gruesome Geronimo, Oklahoma bank robbery in 1984, and for being gay. Current capital punishment doctrine permits, and perhaps even encourages, such results. The Geronimo Bank Murders recasts Neill's story, privileging homosexuality and gender, and uses that account to make three points, each based in law, culture, and politics. First, as a matter of legal doctrine, recognizing the error in using …

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.

It Takes Three, Baby: The Lack Of Standard, Legal Definitions Of "Best Interest Of The Child" And The Right To Contract For Lesbian Potential Parents, Harvey L. Fiser, Paula K. Garrett

Cardozo Journal of Equal Rights & Social Justice

In order to consider the plausibility of contracts regarding Artificial Insemination, or Al, this article will first review various options and legal ramifications for choices regarding Al and then focus on the effect of inconsistent application of the Uniform Parentage Act, or UPA, among states that have chosen to adopt any legislation. This legal conundrum creates major obstacles for lesbian couples in procreation and in legal protection for children and often denies lesbian Americans the right to equal enforcement of contracts. This article will consider how the current standard of "best interest of the child" is being used in the …

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.

The Changing Faces Of Women's Colleges: Striking A Balance Between Transgender Rights And Women's Colleges' Right To Exclude, Cathy Perifimos

Cardozo Journal of Equal Rights & Social Justice

The note explores the tension between women's colleges' traditional mission of providing single-sex education and the rights of transgender students, arguing for the need to balance these interests through clear policies and legal frameworks.

Male Rape Victims: Breaking The Silence, Kiran Mehta

Public Interest Law Reporter

No abstract provided.

Cambodian Government Attempts To Combat Child Sex Tourism With Approval Of Anti-Trafficking Law, Cerise Fritsch

Public Interest Law Reporter

No abstract provided.

Something Old, Something New: Civic Virtue And The Case For Same-Sex Marriage, Tiffany C. Graham

Scholarly Works

In 1993, the Supreme Court of Hawaii issued a decision that forced the question of same-sex marriage from the hinterland of academic speculation to the front pages of newspapers all over the country. The nation was stunned when the court in Baehr v. Lewin held that same-sex marriage might be compelled by the state constitution of Hawaii. Since the Baehr decision, same-sex marriage has received a significant amount of attention. Many states have passed “baby DOMAs,” all of which limit marriage to the union of a man and a woman. In addition, several states have passed constitutional amendments that accomplish …

Tribal Customary Law In Jordan, Ann Furr, Muwafaq Al-Serhan

South Carolina Journal of International Law and Business

No abstract provided.

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 …

Strict Liability And Negligent Rape: Or How I Learned To Start Worrying And Question The Criminal Justice System, Dini Rosenbaum

Cardozo Journal of Equal Rights & Social Justice

The note critiques strict liability and negligent rape standards, advocating for a more nuanced approach that prioritizes subjective fault and societal education to address the limitations of current rape laws. It emphasizes the need to align legal standards with the defendant's actual state of mind while addressing systemic barriers to justice, particularly in date rape cases. The analysis highlights the gap between legal reforms and their practical application, suggesting that education could be a more effective tool for prevention than relying solely on legal changes.

Marriage And Practical Knowledge, Robert F. Nagel

Publications

No abstract provided.

Re-Interpreting The Criminal Regulation Of Sex Work In Light Of R C Labaye, Elaine Craig

Articles, Book Chapters, & Popular Press

In 2005, the Supreme Court of Canada revised the meaning of indecency under the Criminal Code. This was achieved by removing from its definition any reliance on the community standard of tolerance test. In R. c. Labaye the Court reinforced the notion that the focus of laws regulating sexuality should not be based on sexual morality and moral harm to society but rather on political morality and actual harm to individuals. The reasoning in R. c. Labaye should change the way that courts understand the prostitution-related provisions in the Criminal Code. In particular, a proper application of its reasoning suggests …

(E)Racing Jennifer Harris: Sexuality And Race, Law And Discourse In Harris V. Portland, Kristine E. Newhall, Erin E. Buzuvis

Faculty Scholarship

In 2007 Penn State basketball coach Rene Portland retired shortly after a confidential settlement ended a discrimination lawsuit brought by former player Jennifer Harris against Portland and Penn State. Because of Portland's infamous policy of not allowing lesbians on her team, her departure was celebrated as a victory against homophobia in sports. Yet although Harris's claims of sexual orientation discrimination were validated in the media, her allegations of racial discrimination were ignored or dismissed as implausible. In this Article, the authors examine the omission of race from the discourse surrounding this case and suggest that both legal and cultural factors …

Instead Of Enda, A Course Correction For Title Vii, Jennifer S. Hendricks

Publications

In September 2008, the D.C. federal court issued a landmark decision holding that discrimination against a transgender person was sex discrimination under Title VII. This decision throws into sharp relief the ongoing debates among supporters of the Employment Non-Discrimination Act about whether the compromise on including protection for gender identity claims. Consideration of ENDA in some form will likely be early on the agenda of the next Congress, especially under a Democratic administration likely to support the bill. This essay proposes an alternative to ENDA that would embrace the theoretical connections between sex, gender, and sexual orientation, with important practical …

Abbott, Aids, And The Ada: Why A Per Se Disability Rule For Hiv/Aids Is Both Just And A Must, Scott Thompson

Publications

HIV/AIDS should be classified as a per se disability under the Americans with Disablities Act. Such a ruling is justified by the plain language of the act itself, legislative history, administrative regulations, and court precedent. Absent such a ruling, individuals with HIV must demonstrate that they have (1) an mental or physical impairment, (2) that substantially limits (3) a major life activity. While most courts to address the applicability of the ADA to individuals with HIV/AIDS have found that such individuals are disabled because HIV impairs the major life activity of reproduction, such an interpretation leaves open the possibility that …

Pornography, Coercion, And Copyright Law 2.0, Ann Bartow

Vanderbilt Journal of Entertainment & Technology Law

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their …

The Parent Trap: Differential Familial Power In Same-Sex Families, Deirdre Bowen

Faculty Articles

Do intact same-sex couples where one member of the couple became pregnant with assisted reproduction or was the primary adopter, and the other member became a parent through second parent adoption, understand the legal protections afforded them? In short the answer is no. An interesting family dynamic arises around those who can claim the true status as parent based on their legal understandings of parenthood and their interactions with the dominant culture. The result of research conducted on this issue indicated that second parent adopters had much less emotional power in the family, but often had more economic power. Even …