Sexuality and the Law Commons^™

Disgust And The Problematic Politics Of Similarity, Courtney Megan Cahill

Michigan Law Review

Martha Nussbaum's latest book, From Disgust to Humanity: Sexual Orientation & Constitutional Law, could not have come at a more opportune time in the history of gay rights in the United States. All signs point to progress toward "humanity," from same-sex couples' successful bids for marriage equality in a handful of states to the public's increasing acceptance of the prospect of gays and lesbians serving openly in the military. Even if recent cognitive science research indicates that same-sex relationships provoke more than a little disgust in some people, landmark marriage-equality victories in a few states suggest that the law is …

Artificial Insemination And The Presumption Of Parenthood: Traditional Foundations And Modern Applications For Lesbian Mothers, William M. Lopez

Chicago-Kent Law Review

This note traces the history of the presumption of parenthood and applies the traditional rationales underlying the presumption to support its application to married lesbian couples. Part I discusses the formation of the presumption in England and recognizes that the presumption was created for three important reasons: to protect the child; to protect the public purse; and to protect the biological family. Part II discusses state laws on artificial insemination and dissects the basic requirements for both same-sex and opposite-sex parents. This Part then applies the presumption's traditional rationales to lesbian couples having children, arguing that the same presumption should …

Resolving Conflicts Of Constitution: Inside The Dominican Republic's Constitutional Ban On Abortion, Mia So

Indiana Law Journal

No abstract provided.

Open Service And Our Allies: A Report On The Inclusion Of Openly Gay And Lesbian Servicemembers In U.S. Allies' Armed Forces, Suzanne B. Goldberg

William & Mary Journal of Race, Gender, and Social Justice

In the wake of the Obama Administration’s pledge to repeal
“Don’t Ask, Don’t Tell” in the United States, the Columbia Law
School Sexuality & Gender Law Clinic undertook a review of how
allies of the United States moved from a policy of banning gay and
lesbian servicemembers from serving in the armed forces to a policy
of allowing these servicemembers to serve openly (“open service”).
In documenting this review, this report aims to provide information
about the decision to implement open service and the mechanics of
the transition to open service in Australia, Canada, Israel, and the
United Kingdom. In …

Work, Caregiving, And Masculinities, Ann C. Mcginley

Scholarly Works

In her book Reshaping the Work-Family Debate, Joan Williams demonstrates the vulnerability of parent workers in working class America. In Chapter 2, "One Sick Child Away from Being Fired," she examines the records of ninety-nine union arbitrations to analyze the problems of working class parents who struggle to juggle their working and parenting responsibilities. Because this chapter is a tour de force in an overall excellent book, and because it suggests an area that Professor McGinley's research has focused on over the past number of years, in this Essay, Professor McGinley limits her discussion almost exclusively to this chapter. …

"Till Death (Or Doma) Does Us Part": How Doma Imposes An Unconstitutional Classifying And Coercive Condition On Federal Funding In The Wake Of Massachusetts V. United States Department Of Health And Human Services, Erin Bender

Richmond Public Interest Law Review

This Note suggests that the Court adopt a new test that would look at a condition attached to federal funding and determine whether it is a classifying condition or a coercive condition. Under this new test, a classifying condition will be deemed constitutional unless it violates equal protection principles; a coercive condition, on the other hand, will usually implicate the unconstitutional conditions doctrine.' On July 8, 2010, in Massachusetts v. United States Department of Health and Human Services, Judge Tauro of the United States District Court for the District of Massachusetts granted Massachusetts' motion for summary judgment by determining that …

"Till Death (Or Doma) Does Us Part": How Doma Imposes An Unconstitutional Classifying And Coercive Condition On Federal Funding In The Wake Of Massachusetts V. United States Department Of Health And Human Services, Erin Bender

Law Student Publications

Part II of this Note provides a short legislative history of DOMA and an overview of Spending Clause jurisprudence. Part III provides an overview of Judge Tauro‘s opinion in Massachusetts. Finally, Part IV of this Note analyzes Section Three of DOMA under the proposed classifying/coercive condition approach to the Spending Clause and concludes that Section Three of DOMA would be unconstitutional as either type of condition.

Burying Our Heads In The Sand: Lack Of Knowledge, Knowledge Avoidance And The Persistent Problem Of Campus Peer Sexual Violence, Nancy Chi Cantalupo

Georgetown Law Faculty Publications and Other Works

This article discusses why two laws that seek to prevent and end sexual violence between students on college campuses, Title IX of the Educational Amendments of 1972 ("Title IX") and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act ("Clery Act"), are failing to fulfill that goal and how these legal regimes can be improved to reach this goal. It explicates how Title IX and the Clery Act ignore or exacerbate a series of "information problems" that create incentives for schools to "bury their heads in the sand" with regard to campus peer sexual violence. These …

'Til Death Do Us File Joint Income Tax Returns (Unless We're Gay), Daniel Milstein

Cardozo Public Law, Policy & Ethics Journal

The note examines the legal and constitutional challenges posed by the Defense of Marriage Act (DOMA) in relation to same-sex marriage, arguing that DOMA unconstitutionally infringes on state authority and denies equal protection to same-sex couples. It highlights how DOMA's definition of marriage as between a man and a woman conflicts with evolving state laws recognizing same-sex unions and the federal government's traditional deference to state marriage determinations. The analysis centers on key court rulings, including Massachusetts v. U.S. Department of Health and Human Services and Merrill v. Commissioner, which address DOMA's validity and its implications for federal tax …

Sex And Hiv Disclosure, Aziza Ahmed, Beri Hull

Faculty Scholarship

What do you consent to when you have sex with someone? What if the person is a new sexual partner from a night at a bar? What if the person is your spouse or long-term partner? In these two scenarios, people might understand both HIV risk and HIV disclosure differently. Close reflection demonstrates that a purportedly clear set of criminal laws rarely reflects the complexity of sexual interaction.

This article explores how the dynamics of HIV disclosure prior to sex contribute to an ongoing dialogue about disclosure and consent: Does a person have a right to know his or her …

Same Sex Marriage: Does The Constitution Or State Constitution Support Same-Sex Marriages?, Sonja Seehusen

University of the District of Columbia Law Review

No abstract provided.

Helping Students Who Can't Help Themselves: Special Education And The Deliberate Indifference Standard For Title Ix Peer Sexual Harassment, Annette Thacker

Brigham Young University Education and Law Journal

No abstract provided.

Same-Sex Marriage And The Schools: Potential Impact On Children Via Sexuality Education, A. Dean Byrd

Brigham Young University Education and Law Journal

No abstract provided.

Same-Sex Marriage And The Public School Curriculum: Can Parents Opt Their Children Out Of Curricular Discussions About Sexual Orientation And Same-Sex Marriage?, Kevin Rogers, Richard Fossey

Brigham Young University Education and Law Journal

No abstract provided.

Lochner, Lawrence, And Liberty, Joseph F. Morrissey

Georgia State University Law Review

Many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation.

Advocates have made a wide variety of arguments attacking such restrictions. Scholars and litigants frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However, such arguments are often defeated by counter arguments presented with religious, moral, and even emotional fervor.

This article presents and defends a new analytical framework based on liberty of contract to advance gay rights. …

Distilling Ashcroft: The Ninth Circuit’S Application Of National Community Standards To Internet Obscenity In United States V. Kilbride, Eric B. Ashcroft

BYU Law Review

No abstract provided.

Conference Bibliography, Wiener-Rogers Law Library, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Multidimensional Masculinities and Law: A Colloquium

A selected bibliography was prepared in connection with the Multidimensional Masculinities and Law Colloquium held at the William S. Boyd School of Law, University of Nevada, Las Vegas, on February 18-19, 2011.

Conference Program, University Of Nevada, Las Vegas -- William S. Boyd School Of Law, Suffolk University Law School

Multidimensional Masculinities and Law: A Colloquium

No abstract provided.

Reimagining Democratic Theory For Social Individuals, Steven L. Winter Walter S. Gibbs Distinguished Professor Of Constitutional Law

Law Faculty Research Publications

The Western conception of the individual as a rational, self-directing agent is a mythology that organizes and distorts religion, science, economics, and politics. It produces an abstracted and atomized form of engagement that is fatal to collective self-governance. And it turns democracy into the enemy of equality. Considering the meaning of democracy and autonomy from a perspective that takes the subject as truly social would refocus our attention on the constitutive contexts and practices necessary for the production of citizens who are capable of meaningful self-governance. Under modern conditions, it is in the development of sexual autonomy that we learn …

"Don't Ask, Don't Tell" - Except In A Job Interview: The Discriminatory Effect Of The Policy On A Veteran's Employment, Amanda Alquist Pope

Legislation and Policy Brief

A United States military veteran’s ability to receive benefits, such as preference in federal employment is, in part, based upon the reason for discharge. Lesbian, gay, or bisexual (LGB) members of the military may be dishonorably discharged under the “policy concerning homosexuality in the armed forces,” commonly referred to as “Don’t Ask, Don’t Tell” (DADT). Under this policy, the reason for discharge on a service member’s papers may be listed as “homosexual conduct,” “homosexual act,” or “homosexual admission.” One major discriminatory effect of this policy is that, given the narrative reason that appears on the dis-charge form, this policy effectively …

When The Child Abuser Has A Bible: Investigating Child Maltreatment Sanctioned Or Condoned By A Religious Leader, Basyle Tchividjian, Victor Vieth

Faculty Publications and Presentations

In many cases of child sexual and physical abuse, perpetrators use religious or spiritual themes to justify their abuse of a child. Although no known religion in modern culture suggests that sexual abuse is condoned or taught as part of its tenets, some church leaders engage in conduct suggesting the child is equally, if not more to blame than the perpetrator, while also urging immediate reconciliation between the perpetrator and victim. In more than one case, pastors have asked children to confess their own “sins” in being sexually abused and have even required children to “confess” in front of an …

Doma And Diffusion Theory: Ending Animus Legislation Through A Rational Basis Approach, David J. Herzig

Law Faculty Publications

Same-sex couple rights are the topic of much discussion and debate. There are court challenges to the constitutionality of the Defense of Marriage Act (“DOMA”) as well as proposed marriage statutes. The message and the structure for the recognition of same-sex rights need to be modified. This Article proposes applying, for the first time in the area, modern sociology theory, specifically Diffusion Theory, to change how the message is delivered. Using Diffusion Theory to change the message frame will change judicial decisions. By using the backdrop of the Florida adoption statute, a comparison between the successful challenges to the Florida …

Tango Or More - From California's Lesson 9 To The Constitutionality Of A Gay-Friendly Curriculum In Public Elementary Schools, Amy Lai

Michigan Journal of Gender & Law

In August 2009, a group of parents in California filed a lawsuit, Balde v. Alameda Unified School District, in the Superior Court of California, County of Alameda. They alleged that the Alameda Unified School District refused them the right to excuse their children from a new curriculum, Lesson 9, that would teach public elementary school children about gay, lesbian, bisexual and transgender (GLBT) families. The proposed curriculum included short sessions about GLBT people, incorporated into more general lessons about family and health, once a year from kindergarten through fifth grade. Kindergarteners would learn the harms of teasing, while fifth graders …

Sex Equality's Unnamed Nemesis, Veronica Percia

Michigan Journal of Gender & Law

Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours …

Gay Marriage And The Citizens’ Initiative: A Comparative Analysis, Benjamin Larsen

McNair Scholars Research Journal

The legalization of gay marriage has become a contentious issue in the United States, especially for individual state governments. The variation between gay marriage policies in US states ranges from complete ban of all partnership benefits to complete marriage equality for homosexual couples. This study seeks to explain this variation by looking at the possible mechanical factors that could affect state gay marriage policies. Specifically, this study looks at the influence the presence or lack of the citizens’ initiative process has on the gay marriage movement. The sample is seven states that have previously or currently legalized gay marriage through …

Carry That Weight: Victim Privacy Within The Military Sexual Assault Reporting Methods, 28 J. Marshall Computer & Info. L. 551 (2011), Emily Hansen

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

Homosexual Single Individuals’ Right To Adopt Before The European Court Of Human Rights And In The French Legal Context, Elena Falletti

Human Rights Brief

No abstract provided.

Same-Sex Marriage, Same-Sex Cohabitation, And Same-Sex Families Around The World: Why ‘Same’ Is So Different?, Macarena Saez

Scholarly Articles in Law Reviews & Journals

This paper briefly explains the situation of same sex couples in countries that have opened marriage to individuals of the same sex, offers a summary and analysis of the status of same sex unions in several countries that have not opened marriage to same sex couples, and provides a comparative analysis of the most recurrent arguments used in the processes of recognition and denial of same sex unions in the countries reviewed.

Forty years ago, same sex couples were not legally accepted in any country. In the last thirty years, however, around 20% of the world has granted some rights …

When Sixteen Ain't So Sweet: Rethinking The Regulation Of Adolescent Sexuality, Nicole Phillis

Michigan Journal of Gender & Law

Legally speaking, sexual maturity poses a significant enough liberty interest for a minor to make medical decisions regarding contraceptive medicine or to choose motherhood without parental involvement, but not quite enough for her to obtain an abortion independently. The law incentivizes teenage motherhood by only granting decisional autonomy to those minors who choose to have a child; the minor female's right to procreate vests regardless of her individual maturity. The law discourages teenage abortions by using the choice to terminate a pregnancy to trigger a presumption of immaturity; the minor female's abortion right is pitted against personal autonomy via parental …

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …