Sexuality and the Law Commons^™

Religious Exemptions To Anti-Discrimination Law: Children's Rights In The Constitutional Calculus, Tanya Washington, Catherine Smith, Robin Walker Sterling

Scholarly Articles

Increasingly, religious actors in the public sphere--whether in the provision of goods and services (Masterpiece Cakeshop) or in government contracting (Fulton)--are simply invoking a person's sexual orientation as inconsistent with their religious tenets to benefit from a legal doctrine that shields them from the requirement that they offer an underlying rationale for LGBTQ discrimination. Over the past decade, we have filed amicus briefs in United States Supreme Court cases advancing children's constitutional rights, including briefs providing a check on these religious-based arguments when they adversely impact children's rights in the familial and child regulation contexts and …

State Legislatures And Trans* Genocide (?) In The United States, Shannon Fyfe

Scholarly Articles

Certain state legislatures in the United States have targeted trans* people and other members of the queer community through an onslaught of legislative efforts since early 2020. Many of these efforts have targeted trans* youth specifically, by banning or limiting their access to gender-affirming care. As I have shown, gender-affirming care is necessary health care for trans* youth and is crucial for their mental and physical health and well-being. Some have argued that these legislative efforts targeting trans* youth are genocidal, that they are intentionally aimed at destroying the trans* community. I agree that the harm experienced by the trans* …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

The Tenth Anniversary Of Marriage Equality: How Traditional Marriage Law Led To Constitutional Protection For Same-Sex Marriage, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This essay explores how the history of interstate marriage recognition law was central to the Supreme Court’s recognition of constitutional protection for the right of same-sex couples to marry. Prior to the 1990s, there were essentially no laws on same-sex marriage in the United States. That changed in the 1990s, when the Hawaii Supreme Court issued a ruling in Baehr v. Lewin that made authorization of same-sex marriage seem inevitable in that state. The threat fueled the adoption first of the federal Defense of Marriage Act (DOMA) in 1996 and then mini-DOMAs in most states. Those laws were broad and …

An Ethnography Of Love Jihad: The Governance Of Interfaith Marriages In Times Of Hindutva, Snehal Sharma

Theses and Dissertations--Gender and Women's Studies

My doctoral research focuses on the violations of human and citizenship rights of women and religiously marginalized communities (based on religious differences) in the backdrop of right-wing movements in India. I assess the Hindu nationalist propaganda named “love jihad” to demonstrate the way it weaponizes religious exogamy. This propaganda legitimizes violence against Indian religious minorities and women as it claims that marriages between Hindu women and Muslim men are acts of terrorism against Hindus with the sole aim of increasing the Muslim population using Hindu women's bodies. I have used ethnographic research methods to explore the legal process of interfaith …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Faking It: A Proposed Solution To Counter Nonconsensual Pornographic Deepfakes, Rena Song

Washington and Lee Journal of Civil Rights and Social Justice

2024 Louise A. Halper Award Winner for Best Student Note.

Deepfakes have become popular due to their user-friendly nature and accessibility, allowing anyone to create one by installing deepfake software programs on their phones or laptops. Deepfake software programs allow creators to create hyper-realistic multimedia featuring anyone whose image they can find. Some industries have drawn positive uses from deepfakes; however, deepfakes also create harms that can have detrimental effects on people’s mental health, employment, and reputation. Women and children, including those without a large online presence, have become the target for nonconsensual pornographic deepfakes. Congress has yet to pass …

The Expressive Power Of Protecting Intimate Privacy: A Comparative Study Of Legal And Platform Measures, Danielle Keats Citron, Jonathon W. Penney, Alexis Shore Ingber

Articles & Book Chapters

Intimate privacy violations exact profound costs to freedom, including chilling victims into silence; denying them sexual agency; and eroding trust critical to intimate expression and sharing. Effective intimate privacy protections could mitigate these harms via law’s expressive function—sending a message or “signal” that victims of intimate privacy invasions are valued, and their expressions worthy of protection. However, without proof, skepticism is warranted about potential expressive functions as there has been an absence of proof to back up these claims. This Article aims to help fill this void, making a theoretical and empirical case for a positive expressive impact of both …

Paternity, Protection, And Pirates: A Queer Theory Analysis Of Intellectual Property Metaphors, Eden Sarid

IP Theory

Intellectual Property and queer theory share a fundamental concern with the interplay between private and public, tangible and intangible, and language and form. Queer theory emphasizes how language impacts the construction of identity and belonging, highlighting that discourse plays a pivotal role in structuring gender, sexuality, and normativity. Intellectual Property is often portrayed as strictly neutral, laser-focused on spurring creativity and innovation. However, is this portrayal reflective of reality? And does this purported neutrality hold up in IP’s rhetoric? By examining two principal IP terminologies through a queer lens – the term “protection” to describe IP legal privilege, and the …

The Unfulfilled Promise Of Obergefell For Children Of Lgbtq+ Parents: Advancing Non-Discrimination Laws For Familial Association, Jeffrey Dodge

Faculty Scholarship

Since the 2015 Obergefell v. Hodges decision, same-sex marriages have increased significantly in the United States. The American Community Survey data collected in 2022 shows that there are around 1.3 million same-sex couple households in the country, up from 565,000 in 2028. Just over half of these couples are legally married, up nearly 400% from prior to Obergefell. This data not only shows the significance of Obergefell for the LGBTQ+ community, but it also frames a generational shift in attitudes on marriage and family.

With the rise in same-sex couples accessing marriage has come greater visibility, representation, and acknowledgement. …

Prurient Interests: The Law Of Sexual Desire, Lawrence M. Friedman

FIU Law Review

A recent book by George Fisher tries to explain the history of drug and alcohol laws in terms of social and legal norms against whatever can rob people of rational thinking; this article extends the analysis to laws about sexual behavior in the last two centuries, their rise and fall.

Being Pregnant In Someone Else's Body, Jennifer S. Hendricks

FIU Law Review

In the wake of the Dobbs decision overturning the right to abortion, now is a critical time to re-assess how legal feminism theorizes the pregnant body. Before Dobbs, feminist legal scholarship had blazed a path of anti-maternalism, a stance rooted in liberal, formalist notions of equality that denigrates the “feminine” and too often minimizes the importance of reproductive issues both as tools of sex-based subordination in the present and as foundations for liberation in the future. Anti-maternalism is attractive to legal scholars because it minimizes sex and gender differences and may appear to be gender-inclusive. It has produced arguments that …

Let's Talk About Sex: Investigating Radical Feminist Theories On Prostitution In The United States, Anna E. Peterson

Scripps Senior Theses

This paper explores the feminist debates surrounding prostitution through an analysis of Catharine MacKinnon and Andrea Dworkin’s abolitionist theories, juxtaposed with critiques from Wendy Brown, Janet Halley, Susie Bright, and Marxist feminist abolitionist Esperanza Fonseca. The text examines the systemic forces of patriarchy and capitalism that commodify women’s bodies and the challenges of legislative approaches to the sex trade. While MacKinnon and Dworkin identify the structural inequalities underpinning prostitution, their legislative proposals often fail to address the stigma and systemic conditions that perpetuate the marginalization of prostituted people. Critics like Brown and Halley highlight the limitations of punitive measures, calling …

Queers, Closets, And Corporate Governance, Darren Rosenblum

Faculty Publications

The past few years have seen several corporate diversity initiatives that include Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ+) people. In 2020, Nasdaq, the world’s second-largest stock exchange, and California, the largest state, both adopted rules to encourage board diversity for underrepresented groups, including LGBTQ+ people. Since that time, the Los Angeles Superior Court struck down California’s law, the Fifth Circuit invalidated Nasdaq’s rule, and the Trump administration initiated a slew of anti-Diversity Equity and Inclusion (DEI) and anti-LGBTQ+ measures. In the context of this sharp ideological turn, this Article attempts to step back and tackle a larger question: how can …

The Comstock Act’S Equal Protection Problem, Danny Y. Li

Michigan Law Review Online

Following its victory in Dobbs, the antiabortion movement has set its sights on a national abortion ban. Affiliates of the second Trump Admin- istration—including the vice president-elect—have endorsed the re- newed enforcement of the 1873 Comstock Act as one avenue for implementing such a ban. This Essay argues that contemporary enforce- ment of the Comstock Act as a national abortion ban would be unconsti- tutional. The Act violates the Fifth Amendment’s equal protection guarantee because it was enacted with the discriminatory purpose of in- hibiting illicit sex to promote women’s sexual purity. Only contemporary reenactment of the law without constitutionally …

A New Satanic Panic, Jonathon J. Booth

Publications

A broad backlash to LGBTQ visibility and equality has emerged in recent years. Its conservative proponents have asserted that queer people are Satanic, called gender affirming healthcare child abuse, and labeled adults who teach about gender and sexuality "groomers." This rhetorical shift, combined with an explosion of anti-transgender legislation, may presage a revival of the 1980s Satanic Panic, when fears of brutal crimes allegedly committed by Satanic cults swept the nation. These accusations spurred the longest trial in American history, commanded tabloid news, and led dozens of people to be convicted of lurid crimes, nearly all of whom were later …

Patenting The Taboo: Sex, Drugs, And Abortion, Andrew Gilden, Sarah R. Wasserman Rajec

Faculty Publications

The patent system provides a surprisingly rich archive of the interplay between social norms and technological change. Patent law requires applicants to publicly disclose the novelty and usefulness of their inventions, thereby bringing to light areas of innovation that may have previously lived in the shadows. In other words, patent law encourages public disclosure of technologies that are taboo—developed and practiced in secret, for reasons such as social approbation, illegality, or religious sanctity. To obtain a patent for a taboo technology, patentees must establish their legitimacy as innovators while navigating cultural norms that are hostile to their fields of innovation. …

The Complex And Marginalized Experiences Of Bipoc Trafficked Women: An Examination Of Disabilities, Aces, Discrimination, And Racism, Jacquelyn C. A. Meshelemiah, Fabian Arroyo Rojas, Hannah Ruth Steinke, Marlene Carson, Justin A. Haegele

Human Movement Studies & Special Education Faculty Publications

The purpose of this study was to examine the lived experiences and multiple identities of disabled BIPOC trafficked women. The findings from this study help to identify a carousel of victimization experienced by disabled BIPOC trafficked women, starting with adverse childhood experiences, onto trafficking victimization that differed between Black and White women, and later while seeking services. These findings highlight the need for providers and researchers to think beyond monolithic identities and consider the intersecting ways in which various forms of oppression (ableism and racism) influence the experiences of disabled trafficked BIPOC women.

Property Problems In The New Non-Marriage: Inheritance, Eliot Tracz

American University Journal of Gender, Social Policy & the Law

Marriage equality has been a hotly contested topic for many years, in both the court of public opinion and in courts of law. Major Supreme Court cases have found that marriage is a fundamental right, yet issues such as marriage outside of one’s race or to a person of the same gender have still been topics of litigation. At times, the very definition of marriage has been at issue, but throughout all of this litigation, courts have consistently defined marriage as a relationship between two people.

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead