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 …

How U.S. Family Law Might Deal With Spousal Relationships Of Three (Or More) People, Edward D. Stein

Articles

For much of this nation's history, the vast majority of people have believed that being married to more than one person at the same time is deeply problematic. Further, polygamous marriage has never been legal in the United States. Despite this, some people have been in plural or group relationships and some of these people have wished to gain legal recognition for these relationships. The arguments for recognizing such relationships are persuasive, but the prospects for legalization of polygamous marriage seem slim in the near future. This Article offers a suggestion of how the law of domestic relations might deal …

Gender In The Context Of Same-Sex Divorce And Relationship Dissolution, Suzanne A. Kim, Edward D. Stein

Articles

This article identifies ways that judges, lawyers, researchers, and policy makers may attend to the role of gender and gender dynamics facing same-sex couples upon divorce or other relationship dissolution. When same-sex couples marry, the legal system and society at large may project conceptions of gender onto same-sex couples, often in a manner that conflicts with couples’ intentions and practices. Gender and gender dynamics may affect the bases for dissolution, the financial aspects of dissolution, and the determination of child custody. The article also suggests directions for future research on the impact of gender on the dissolution of same-sex relationships.

How Does A Radical Lesbian Feminist Who Just Knows How To Holler Somehow Become A Noted Legal Scholar, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Not Too Separate Or Unequal: Marriage Penalty Relief After Obergefell, Mitchell L. Engler, Edward D. Stein

Articles

Joint tax returns have generated controversy for many years. Married couples with the same joint income pay the same tax under our current system regardless of the earnings distribution between the spouses. This approach primarily rests on the idea that married couples share resources and operate as a single economic unit. Critics typically challenge this assumption and lament how marriage might significantly change a couple's taxes. Depending on their earnings breakdown, a couple's taxes could be reduced (a marital bonus for uneven-earners) or increased (a marital penalty for even-earners). These possibilities exist because the joint brackets are typically larger-but not …

Plural Marriage, Group Marriage And Immutability In Obergefell V. Hodges And Beyond, Edward D. Stein

Articles

For decades, opponents of marriage for same-sex couples have appealed to polygamy. The Chief Justice's dissent in Obergefell is no exception insofar as he says that the logic of the majority opinion with respect to same-sex marriage also applies to plural marriage. This Essay explores the resources for distinguishing polygamy from same-sex marriage, focusing on the mutability or immutability of the desire to engage in plural/group marriage as compared to the desires to marry someone of the same sex. It shows the appeal to immutability does not succeed in distinguishing plural/group marriages from same-sex marriages.

Same-Sex Parenting Among A Patchwork Of Laws: An Analysis Of New York Same-Sex Parents’ Options For Gaining Legal Parental Status, Alexander Newman

Cardozo Law Review de•novo

While national attention has focused on the recent Supreme Court decision, Obergefell v. Hodges, which legalized same-sex marriage, less attention has been paid to the aftermath: how will those same-sex couples, now legally married, use laws drafted for different-sex couples? This Note will focus on one of these conflicts: the children born to and adopted by same-sex couples, and the legal relationship between the couples and their children within the state of New York. As nontraditional families have become more prevalent, the law has lagged behind and families have been forced to apply outdated laws to new arrangements. This …

Concord With Which Other Families: Marriage Equality, Family Demographics, And Race, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

From Third Parties To Parents: The Case Of Lesbian Couples And Their Children, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Transforming Family Law Through Same-Sex Marriage: Lessons From (And To) The Western World, Macarena Saez

Scholarly Articles in Law Reviews & Journals

Same-sex marriage is a 21st century phenomenon. In less than 13 years more than 15 countries have amended their marriage laws to include same-sex couples. Some countries have made the change through political decisions but others have reached the change through adjudicative processes. A comparative analysis of decisions from the highest courts of countries or states granting marriage to same-sex couples demonstrates: 1. similar arguments are presented to these courts when making the case for and against same-sex marriage; 2. courts are using comparative law to justify their decisions on same-sex marriage; 3. the majority of courts in these countries …

The Topography Of Legal Recognition Of Same-Sex Relationships, Edward D. Stein

Articles

This article categorizes and explains the variety of forms of relationship recognition that have emerged in the United States over the last dozen or so years. Five issues regarding same-sex marital andnonmarital relationship statuses are examined: (1) eligibility, (2) benefits, (3) dissolution, (4) recognition from other jurisdictions, and (5) the intersection of state and federal law. The article then offers various proposals about what states should do in the face of the options that have emerged: (a) states that recognize same-sex marriages and nonmarital relationships should adapt their statutes to recognize "substantially similar" relationships; (b) jurisdictions should adopt statutes that …

The New Illegitimacy: Winning Backward In The Protection Of The Children Of Lesbian Couples, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Response: And Baby Makes How Many - Using In Re M.C. To Consider Parentage Of A Child Conceived Through Sexual Intercourse And Born To A Lesbian Couple, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

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 …

Looking Beyond Full Relationship Recognition For Couples Regardless Of Sex: Abolition, Alternatives, And/Or Functionalism, Edward D. Stein

Articles

In the context of recent accomplishments in the quest for full marriage equality for same-sex couples, this article considers three proposals for reform to the law of adult domestic relations: (i) the abolition of the legal institution of marriage; (ii) the development of a broad “menu” of alternative forms of relationship recognition in addition to marriage; and (iii) the embracing of a functionalist approach to relationship recognition whereby relationships that share significant functional attributes with marriages are, in certain ways, given the same legal treatment as marriages. The article contends that advocates and theoreticians should strive for more than just …

The Stories Of Marriage, Katharine K. Baker

All Faculty Scholarship

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, …

Equality And Justice For Lesbian And Gay Families And Relationships, Nancy Polikoff

Scholarly Articles in Law Reviews & Journals

In 1989, Tom Stoddard and Paula Ettelbrick, attorneys with the gay rights group Lambda Legal, published side-by-side opposing essays about whether marriage for same-sex couples should be a movement priority. Rutgers Law Review is publishing a 2009 symposium commemorating the 20th anniversary of these now-iconic essays. This article is part of that symposium. It places the Ettelbrick essay, and the groundbreaking case of Braschi v. Stahl Associates decided the same year, in the context of the gay rights movement's strong support of family diversity. It then critiques the contemporary right-wing marriage movement for blaming all social problems on family diversity/aka …

The "Accidental Procreation" Argument For Withholding Legal Recognition For Same-Sex Relationships, Edward D. Stein

Articles

This article examines “the accidental procreation argument,” an argument against same-sex marriage that still has some traction in United States appellate courts. The accidental procreation argument is meant to take the place of one of the central arguments made by states — and almost universally accepted by courts — in the first batch of cases in the United States about same-sex marriage. That original procreation-based argument — now widely acknowledged to be inadequate — posited that marriage is crucially related to procreation; therefore, since same-sex couples cannot procreate, same-sex couples should not be allowed to marry. The accidental procreation argument …

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.

Love V. Virginia: The Constitutionality Of The Marshall/Newman Amendment, Pavitra Mohan Ram

ExpressO

My comment explores the constitutionality of a recent amendment in Virginia, the Marshall/Newman Amendment, which bans gay marriage and civil unions between unmarried people, and precludes Virginia from recognizing such arrangements formed in other states. The analysis is particularly timely, because even though the Democrats have regained a majority in Congress, and a traditionally Republican Virginian constituency just elected a Democratic senator, a majority of Virginians adopted this Amendment, indicating conservative values still reign.

The comment argues that the Amendment is demonstrably inconsistent with the mandates of the Fourteenth Amendment of the Federal Constitution. The first provision seeks to ban …

Civil Unions And Choice Of Law: A Second Restatement Analysis Of Miller-Jenkins V Miller-Jenkins, Christina N. Lambe

ExpressO

At the end of 2000 Lisa and Janet Miller-Jenkins left their home state of Virginia and traveled to Vermont to enter into a civil union. Their union ended a few years later. Although their separation resulted in a bitter legal battle in both the Virginia and Vermont court systems neither state addressed whether the initial union was valid. This paper analyzes the civil union using the Second Restatement’s choice of law principles. This paper concludes that although the courts have continued to haggle over whether full faith and credit must be given to conflicting visitation orders the choice of law …

Protecting Gay And Lesbian Families From Eviction From Their Homes: The Quest For Equality For Gay And Lesbian Families In Braschi V. Stahl Associates, Paris R. Baldacci

Articles

No abstract provided.

Beyond Interstate Recognition In The Same-Sex Marriage Debate, Gary J. Simson

Cornell Law Faculty Publications

The national same-sex marriage debate has been dominated for the past decade by the interstate recognition issue. This article seeks to shift the focus of the debate to same-sex marriage prohibitions themselves and their incompatibility with several limitations of federal constitutional law.

After showing the legal irrelevance of the Defense of Marriage Act to the interstate recognition issue, the article addresses the proper resolution of that choice-of-law issue through the lens of a well-known New York Court of Appeals decision. In that case, despite New York's ban on uncle-niece marriage, the New York high court - one of the most …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

The Abortion Rights Of Adolescents Should Be Coextensive With Those Of Adults--A Theoretical Framework, Chad M. Gerson

ExpressO

The aim of this article is to argue that the abortion rights of adolescents should be coextensive with those of adults. The first section of the article reviews research in child development which has demonstrated that adolescents are able to make informed, mature decisions on procreative issues. The second section reviews cases which have defined the contours of adult women’s abortion rights, and argues that the reasoning behind those holdings also applies to adolescents.

The Uncertain Future Of Marriage And The Alternatives, Daniel I. Weiner

ExpressO

The cultural and institutional predominance of marriage in our society has lately been challenged by two important social trends: growing dissatisfaction with or indifference to marriage on the part of those eligible to marry, and the emergence of nontraditional families headed by adults who may wish to marry but are presently excluded from doing so. This Essay argues that proactive law reformers have responded to these trends by taking two very different approaches. The first approach, “diversity of forms,” is exemplified by the cultivation of alternatives and substitutes to traditional marriage ranging from same and opposite-sex domestic partnerships and other …

Parental Consent And Notification Laws In The Abortion Context: Rejecting The "Maturity" Standard In Judicial Bypass Proceedings, Anna Bonny

ExpressO

The choice to become a parent, to give a baby up for adoption, or to terminate a pregnancy presents a life-altering decision for a minor. The majority of states require minors to engage their parents or legal guardians in their choice to obtain an abortion, but not in decisions to give their babies up for adoption or to become parents. Though the Supreme Court has held that parental consent and notification laws do not infringe on a minor's constitutional rights if judicial bypass options are available, the reality of these judicial proceedings demonstrates a biased and unworkable legal avenue. Even …

Adult's Sexual Orientation And State Determinations Regarding Placement Of Children, Michael S. Wald

ExpressO

No abstract provided.

Legal Archaeology And Feminist Legal Theory: A Case Study Of A Violation Of A Protective Order , Debora L. Threedy

ExpressO

This article explores the intersection between the field of legal archaeology and feminist legal theory through the medium of a case study of the prosecution of the violation of a protective order.

Both legal archaeology and feminist theory employ “bottom up,” or grounded, theorizing; that is, they begin with specific context and move from there to generalization or abstraction, rather than the other way around. And both operate from a critical perspective that consciously challenges what we think we know about how law operates. For example, both are interested in exploring how systemic vulnerabilities, such as conscious or unconscious gender …

Principled Parentage: Abandoning The Gender-Based Underpinnings Of Legal Parentage Analysis As Applied In The Context Of Gestational Surrogacy, Jennifer A. Kimball

ExpressO

While reproductive technology has provided new options for women who want children, our legal understanding of parentage is still informed by the traditional conception model of two parents: one male and one female. A parent who both is a biological parent and has developed a parent-child relationship with a genetic child ought to be considered a legal parent as well. This conclusion ought not to be vulnerable to attack based on the gender of the other parent; rather, each parent’s claims should be evaluated independently. When gender becomes irrelevant and we abandon the gender-based underpinnings of legal parentage analysis as …