Sexuality and the Law Commons^™

The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber

Publications

No abstract provided.

Wedlocked: The Perils Of Marriage Equality – The Author Meets Her Readers, Katherine M. Franke

Faculty Scholarship

You write a book and you wonder: “will anyone read it?” This Boston University Law Review Annex Symposium on Wedlocked answers my question. Not only did “someone” read the book, but those “someones” are some of the scholars I admire most, and they took the time and thought to engage Wedlocked’s arguments in this symposium. Thank you to each of the scholars who participated in this symposium, thank you to Professor Linda McClain for inviting their participation, and thank you to James Tobin, the Online Editor for the BU Law Review, for providing a home for this conversation about …

Eeoc Win Shows What Trump Era Might Undo, Arthur S. Leonard

Other Publications

No abstract provided.

Memorandum On Mississippi House Bill 1523, Katherine M. Franke, Michèle Alexandre, Deborah A. Challener, Judith J. Johnson, Richard Gershon, Elizabeth A. Sepper, Noa Ben-Asher, Daria Roithmayr, Nomi M. Stolzenberg

Faculty Scholarship

As legal scholars with expertise in matters of religious freedom, civil rights, and the interaction between those fields, we offer our opinion on the scope and meaning of Mississippi House Bill 1523, which was signed into law today by Governor Phil Bryant. Specifically, we wish to call attention to language in the law that we believe conflicts with the Establishment Clause of the U.S. Constitution. We share the view of Justice Kennedy when he expressed that “a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest,” and would add that neither can …

Bridging Bisexual Erasure In Lgbt-Rights Discourse And Litigation, Nancy C. Marcus

Michigan Journal of Gender & Law

LGBT rights are at the forefront of current legal news, with “gay marriage” and other “gay” issues visible beyond dispute in social and legal discourse in the 21st Century. Less visible are the bisexuals who are supposedly encompassed by the umbrella phrase “LGBT” and by LGBT-rights litigation, but who are often left out of LGBTrights discourse entirely. This Article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse. The Article surveys the bisexual erasure legal discourse to date, and examines the causes of bisexual erasure and its harmful consequences for bisexuals, the broader LGBT community, …

Trending @ Rwu Law: Christopher Gerlica's Post: Beyond Same-Sex Marriage, Christopher Gerlica

Law School Blogs

No abstract provided.

Testing Constitutional Pluralism In Strasbourg: Responding To Russia's "Gay Propaganda" Law, Jesse W. Stricklan

Michigan Journal of International Law

In 2013, the Russian Federation amended Federal Law No. 436-FZ, “On Protection of Children from Information Harmful to Their Health and Development” (2013 law), introducing language making illegal the public discussion—or, in the law’s words, “propagandization”—of what it called “non-traditional sexual relationships.” Undertaken during a period of increasing domestic and international hostility, the law was intended by the government to be a bold, two-fold rejection of supposedly “European” values: first, as resistance to the gay rights movement, which is presented as unsuitable for Russia; and second, as a means of further weakening the freedom of expression in Russia. On both …

Scrutiny Of The Venire, Scrutiny From The Bench: Smithkline Beecham Corp. V. Abbott Laboratories And The Application Of Heightened Scrutiny To Sexual Orientation Classifications, Parker Williams

Catholic University Law Review

In SmithKline Beecham Corp. v. Abbott Laboratories, the Ninth Circuit Court of Appeals applied heightened scrutiny to a sexual orientation classification. Through SmithKline, the Ninth Circuit became one of the first federal circuit courts to do so explicitly; and by unequivocally applying a more exacting standard than rational basis, it furthered the framework developed in cases such as Romer v. Evans, Lawrence v. Texas, and United States v. Windsor. This Note asserts that SmithKline is a significant victory for the advancement of LGBT rights, as evidenced by its use to strike down several same-sex marriage bans …

A Marriage By Any Other Name: Why Civil Unions Should Receive Federal Recognition, Deborah A. Widiss, Andrew Koppelman

Indiana Journal of Law and Social Equality

The federal government now recognizes same-sex marriages as triggering rights and responsibilities under federal law. However, it still generally refuses to recognize alternative legal statuses—civil unions and domestic partnerships—that were created by states to serve as functional marriages. Even though all the states that created such alternative statuses now permit same-sex couples to marry, this misguided policy causes ongoing harms. Some same-sex couples who entered into alternative relationships when marriage was not an option may now lack the capacity to marry. Couples who have since married may also be hurt by the federal government’s refusal to recognize civil unions or …

Baker V. Nelson: Flotsam In The Tidal Wave Of Windsor's Wake, David B. Cruz

Indiana Journal of Law and Social Equality

Part I of this Article sketches the virtually unbroken string of pro-marriage decisions in the lower federal and state courts since the U.S. Supreme Court’s 2013 ruling in United States v. Windsor to give a sense of the size and magnitude of this “tidal wave” of precedent. Next, Part II briefly explores some of the reasons that might help account for the flood of litigation and overwhelmingly positive outcomes. Part III tentatively suggests one way this flow of decisions in favor of marriage equality might influence the Supreme Court as it returns to the issue. Part II then at some …

Thrown Away For Being Gay: The Abandonment Of Lgbt Youth And Their Lack Of Legal Recourse, Caitlin "Casey" Judge

Indiana Journal of Law and Social Equality

One of the most pervasive risks LGBT youth face today is the threat of being thrown out of their homes because of their sexual orientation. According to a Massachusetts Youth Risk Behavior Survey, one in four teens that identify as lesbian or gay are homeless. Of the estimated 575,000 to 2.8 million youth that are homeless each year, between 20 percent and 40 percent identify as LGBT. While youth homelessness is most often attributed to neglect, family tragedy, poverty, and addiction, most LGBT youth populations attribute their homelessness directly to their sexual orientation. This suggests that these parents and families …

Bias In Disguise: The Constitutional Problems Of Arkansas’S Intrastate Commerce Improvement Act, John M. A. Dipippa

University of Arkansas at Little Rock Law Review

No abstract provided.

Deboer V. Snyder: A Case Study In Litigation And Social Reform, Wyatt Fore

Michigan Journal of Gender & Law

On April 28, 2015, the Supreme Court will hear oral arguments for four cases from the Sixth Circuit addressing the constitutionality of state bans on same-sex marriage. This Note examines DeBoer v. Snyder, the Michigan marriage case, with the goal of providing litigators and scholars the proper context for our current historical moment in which (1) the legal status of LGBT people; and (2) the conventional wisdom about the role of impact litigation in social reform movements are rapidly evolving.

Certiorari And The Marriage Equality Cases, Carl Tobias

University of Michigan Journal of Law Reform Caveat

Marriage equality has come to much of the nation. Over 2014, many district court rulings invalidated state proscriptions on same- sex marriage, while four appeals courts upheld these decisions. However, the Sixth Circuit reversed district judgments which struck down bans in Kentucky, Michigan, Ohio, and Tennessee. Because that appellate opinion created a patchwork of differing legal regimes across the country, this Paper urges the Supreme Court to clarify marriage equality by reviewing that determination this Term.

The Stereotyped Offender: Domestic Violence And The Failure Of Intervention, Carolyn B. Ramsey

Publications

Scholars and battered women's advocates now recognize that many facets of the legal response to intimate-partner abuse stereotype victims and harm abuse survivors who do not fit commonly accepted paradigms. However, it is less often acknowledged that the feminist analysis of domestic violence also tends to stereotype offenders and that state action, including court-mandated batterer intervention, is premised on these offender stereotypes. The feminist approach can be faulted for minimizing or denying the role of substance abuse, mental illness, childhood trauma, race, culture, and poverty in intimate-partner abuse. Moreover, those arrested for domestic violence crimes now include heterosexual women, lesbians, …

Revoking Rights, Craig J. Konnoth

Publications

In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

From Contract To Status: Collaboration And The Evolution Of Novel Family Relationships, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

The past decade has witnessed dramatic changes in public atti- tudes about and legal status for same-sex couples who wish to marry. These changes demonstrate that the legal conception of the family is no longer limited to traditional marriage. They also raise the possibility that other relationships – cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists – might gain legal recognition as families. This Article probes the challenges faced by aspiring families and the means by which they could attain their goal. It builds on the premise that the state remains committed to social-welfare criteria for …

Multidimensional Advocacy As Applied: Marriage Equality And Reproductive Rights, Suzanne B. Goldberg

Faculty Scholarship

Talking about marriage equality and reproductive rights advocacy together presents an interesting, and sometimes puzzling, assortment of challenges and opportunities. Both involve efforts to secure legal protections and social recognition that are fundamentally important to those who need them yet also deeply provocative to their opponents. For both, too, advocacy takes place on a shifting terrain shaped by competing views of sexuality, autonomy, equality, personhood, and more.

Yet the two advocacy efforts have experienced very different receptions over time. Just over two decades ago, the Supreme Court expressly affirmed that women have a constitutional right to seek an abortion and …

License To Discriminate: How A Washington Florist Is Making The Case For Applying Intermediary Scrutiny To Sexual Orientation, Kendra Lacour

Seattle University Law Review

Over the past few decades, the debate over sexual orientation has risen to the forefront of civil rights issues. Though the focus has generally been on the right to marriage, peripheral issues associated with the right to marriage—and with sexual orientation generally—have become more common in recent years. As the number of states permitting same-sex marriage—along with states prohibiting discrimination on the basis of sexual orientation—increases, so too does the conflict between providers of public accommodations and those seeking their services. Never is this situation more problematic than when religious beliefs are cited as the basis for denying services to …

Two Dads Are Better Than One: The Supreme Court Of Virginia's Decision In L.F. V. Breit And Why Virginia's Assisted Conception Statute Should Allow Gay Couples To Legally Parent A Child Together, Lauren Maxey

University of Richmond Law Review

This comment examines whether gay men can have a child through a surrogacy arrangement in Virginia and whether gay men can retain parental rights through surrogacy contracts under the Virginia Assisted Conception Act. The Virginia laws affect gay males and gay females equally, but this comment addresses the issues arising with same-sex couples in the context of gay dads. Part II provides a background of surrogacy and specifically discusses surrogacy in relation to same-sex couples. Part III provides a general background of adoption and the establishment of parentage rights. Part IV describes the Assisted Conception Act,the legislative history of the …

Immutability And Innateness Arguments About Lesbian, Gay, And Bisexual Rights, Edward Stein

Chicago-Kent Law Review

A popular and intuitively plausible type of argument for the rights of lesbians, gay men, and bisexuals is based on claims that sexual orientations are inborn and/or unchangeable. Many advocates of such rights view expressing doubts about the immutability and innateness of sexual orientation as tantamount to opposing gay rights. Legally, claims that sexual orientations are innate and/or immutable intersect with the so-called immutability factor in equal protection jurisprudence. This article considers the legal, ethical, and empirical support for arguments for LGB rights based on immutability and innateness. I raise a variety of problems for such arguments in various contexts, …

The Evolution Toward Judicial Independence In The Continuing Quest For Lgbt Equality, Susan J. Becker

Law Faculty Articles and Essays

Judicial decisions that hold same-sex marriage bans unconstitutional, no matter how that conclusion is reached, overturn laws or constitutional provisions that were passed with the support of a democratic majority. This Article takes an in-depth look at judicial activism and judicial independence to determine whether such victories for same-sex litigants were done properly by the judiciary. In the eyes of the Framers, an independent judiciary was to be a crucial check on the other branches’ constitutional limitations. With this in mind, judicial independence—where, in contrast with activism, judges meticulously apply the well-examined facts to controlling precedent without accounting for majority …

In The Box: Voir Dire On Lgbt Issues In Changing Times, Giovanna Shay

Faculty Scholarship

This is the first law review article to examine transcripts, court filings, and published opinions about jury voir dire on attitudes toward same-sex sexuality and LGBT issues. It demonstrates that jurors express a range of homonegative attitudes. Many jurors voicing such beliefs are not removed for cause, even in cases involving lesbian and gay people and issues. It suggests some best practices for voir dire to uncover attitudes toward same-sex sexuality, based on social science research. Voir dire on LGBT issues is likely to become more important in coming years. Despite enormous gains, including historic marriage equality decisions, the LGBT …

The Freedom To Marry: Politics And Law In 2014 And Beyond, Ari Ezra Waldman

Other Publications

No abstract provided.

Spelling Out Lgbt: Enumerating Sexual Orientation In Virginia's Anti-Bullying Law, Melissa Wright

University of Richmond Law Review

No abstract provided.

Marriage Rights And The Good Life: A Sociological Theory Of Marriage And Constitutional Law, Ari Ezra Waldman

Articles & Chapters

This is the first in a series of three Articles investigating the underappreciated role that the social theory of Emile Durkheim plays in the quest for the freedom to marry for gay Americans. To that end, this Article begins the discussion by examining the Durkheimian legal arguments that go unnoticed in equal protection and due process claims against marriage discrimination. This Article challenges two assumptions: first, that the most effective legal argument for marriage rights is a purely liberal one, and second, that the substance and rhetoric of liberal toleration cannot exist symbiotically in the marriage discrimination debate with a …

Moving Forward Together: The Lgbt Community And The Family Mediation Field , Mark J. Hanson

Pepperdine Dispute Resolution Law Journal

This is a time of great change for the Lesbian, Gay, Bisexual and Transgender ("LGBT") community. Members of the LGBT community have gained increased awareness and rights. The United States Supreme Court found state sodomy laws that ban same-sex sexual activity unconstitutional. Thirty-three states have enacted hate crime legislation that protects members of the LGBT community. Recently from the streets of San Francisco, to New Platz, New York and to Sandoval County, New Mexico, LGBT couples have received marriage licenses despite being prohibited by state law. Other states, such as Connecticut, Massachusetts and Vermont have enacted legislation giving LGBT couples …

All Those Like You: Identity Aggression And Student Speech, Ari Ezra Waldman

Articles & Chapters

Online and face-to-face harassment in schools requires a coordinated response from the school, parents, students, and government. In this Article, I address a particular subset of online and face-to-face harassment, or identity-based harassment. Identity-based aggressors highlight a quality intrinsic to someone’s personhood and demean it, deprive it of value, and use it as a weapon. They attack women, racial minorities, religious minorities, and other traditionally victimized groups. And, as such, they attack not only their particular victims but also their victims’ communities. Identity-based aggressors com- mit a constitutional evil not only because their behavior interferes with victims’ access to education, …

Who Am I And Who Do You Want Me To Be? Effectively Defining A Lesbian, Gay, Bisexual, And Transgender Social Group In Asylum Applications, Keith Southam

Chicago-Kent Law Review

Asylum law provides an area within immigration law that is unexpectedly friendly to lesbians, gay men, bisexuals, and transgender persons. Persons who suffer persecution on account of "membership in a particular social group" are eligible to live and work in the United States. This encompasses lesbians, gay men, bisexuals, and transgender persons who suffer persecution. However, United States law does not clearly define applicable standards in this area. As a result, different adjudicators in the asylum process focus on different methodological approaches and sometimes inject bias into the process. In addition, because the terms "lesbian," "gay," "bisexual," and "transgender" are …

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 …