Sexuality and the Law Commons^™

Can A Subsequent Change In Law Void A Marriage That Was Valid At Its Inception? Considering The Legal Effect Of Proposition 8 On California's Existing Same-Sex Marriages, Lois A. Weithorn

Faculty Scholarship

No abstract provided.

Exploring The Impact Of The Marriage Amendments: Can Public Employers Offer Domestic Partner Benefits To Their Gay And Lesbian Employees?, Tiffany C. Graham

Scholarly Works

Over the course of the past decade, the question of same-sex marriage has been one of the most contentious issues affecting this country. Starting in 1998, forty-five states prohibited the creation or recognition of same-sex marriage, and thirty states solidified their positions through the passage of state constitutional amendments. Eighteen of these amendments extended their prohibitions even farther by refusing to create or recognize civil unions, domestic partnerships, or any other alternative to traditional marriage that was patterned after marriage. It is this last group of amendments that poses a potentially intractable problem: Is the language employed by these amendments …

The Hidden Dichotomy In The Law Of Morality, Justin P. Nichols

Campbell Law Review

This Comment will begin by exploring the dichotomy itself, and then carefully distinguishing civil and religious morality. The analysis will then examine Lawrence and clarify how the opinion affected the dichotomy. Next, this Comment will apply the post-Lawrence understanding of the rational basis test to several issues of concern raised by opponents of the decision. Finally, this Comment will speculate as to the possible implications of Lawrence for moral issues lying on the horizon.

Marriage As A Message: Same-Sex Couples And The Rhetoric Of Accidental Procreation, Kerry Abrams, Peter Brooks

Faculty Scholarship

In his dissent in the 2003 case Goodridge v. Department of Health, Justice Robert Cordy of the Massachusetts Supreme Court introduced a novel argument in support of state bans on same-sex marriage: that marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Since 2003, every state appellate court considering a same-sex marriage case has adopted Justice Cordy's dissent until the recent California Supreme Court decision In Re Marriage Cases. In case after case, courts have held that …

Is A Strip Club More Harmful Than A Dirty Bookstore? Navigating A Circuit Split In Municipal Regulation Of Sexually Oriented Businesses, Brigman L. Harman

BYU Law Review

No abstract provided.

Virginity Testing And South Africa's Hiv/Aids Crisis: Beyond Rights Universalism And Cultural Relativism Toward Health Capabilities, Erika George

Faculty Scholarship

In this Article, I explore the tension between the politics of culture and the rights of women and girls to equality, privacy, and sexual autonomy in the context of epidemic disease. Specifically, this Article examines the political debate surrounding the resurgence of virginity testing, its widespread popular support in certain communities, and the South African government's recent efforts to prohibit the practice. This Article argues that the current debate over virginity testing, which focuses on abolition or accommodation of the practice, is misguided and polarizing. It argues that these perspectives on the debate increase the likelihood that the problem causing …

Prop. 8 Marginalizes Human Rights Of Same-Sex Couples, Gil Villagran

Faculty Research, Scholarly, and Creative Activity

“We the People of the United States, in Order to form a more perfect Union, establish Justice…”          These words in the Preamble to our Constitution proclaimed in 1787 that our nation, birthed out of colonialism and monarchy, was truly revolutionary.  It would be a democracy not seen since the golden age of Athens, where all citizens were equal before the law, and indeed, free men (more about women below) governed themselves by laws of their making.  The founding fathers knew that a government by the people and for the people could not spring perfect, but would need to be perfected …

"Everybody Is Making Love Or Else Expecting Rain": Considering The Sexual Autonomy Rights Of Persons Institutionalized Because Of Mental Disability In Forensic Hospitals And In Asia, Michael L. Perlin

Washington Law Review

One of the most controversial policy questions in all of institutional mental disability law is the extent to which patients in psychiatric hospitals have a right to voluntary sexual interaction. The resolution of this matter involves difficult and sensitive questions of law, social policy, clinical judgment, politics, religion, and family structures. As difficult as these questions are in cases involving civil hospitals, the difficulties are exacerbated when the topic is the application of the right in forensic hospitals. Such facilities typically house individuals involved in the criminal-justice system: who may be incompetent to stand trial; who have been found incompetent …

The Gender Bend: Culture, Sex, And Sexuality- A Latcritical Human Rights Map Of Latina/O Border Crossings, Berta Esperanza Hernandez-Truyol

Indiana Law Journal

Symposium: Latinos and Latinas at the Epicenter of Contemporary Legal Discourses. Indiana University School of Law-Bloomington, March 2007.

The Gender Bend: Culture, Sex, And Sexuality—A Latcritical Human Rights Map Of Latina/O Border Crossings, Berta E. Hernández-Truyol

UF Law Faculty Publications

In the course of studying and theorizing about Latinas/os and their location in law and culture, critical theory has been simultaneously liberating and restraining, confining, and coercive. Critical theorists have made substantial inroads in recognizing the intersectionality, multidimensionality, multiplicity, and interconnectivities of the intersections of race and sex. These paradigms are central to an analysis of the Latina/o condition within the Estados Unidos (United States). However, much work remains to be done in other areas - such as culture, language, sexuality, and class - that are key to Latinas'/os' self-determination and full citizenship.

Cognizant of, and notwithstanding such limitations, this …

Creating Masculine Identities: Bullying And Harassment "Because Of Sex", Ann C. Mcginley

Scholarly Works

This Article deals with group harassment of women and men in the workplace under Title VII of the 1964 Civil Rights Act. In Oncale v. Sundowner Offshore Services, the Supreme Court held that Title VII forbids harassment by members of the same sex, but it also emphasized that Title VII is implicated only if the harassment occurs "because of sex." Oncale's "because of sex" requirement has spawned considerable confusion in same-sex and different sex harassment cases. This Article focuses on four fact patterns that confuse courts, scholars, and employment lawyers. In the first scenario, men harass women in traditionally male …

Evaluating Legal Activism: A Response To Rosenberg, Dara E. Purvis

Buffalo Journal of Gender, Law & Social Policy

No abstract provided.

Editor's Note: The Future Of Lgbt Scholarship

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Microperformances Of Identity: Visible Same-Sex Couples And The Marriage Controversy, Marc R. Poirier

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Double-Edged Sword In Gay Economic Life? Marriage And The Market, M.V. Lee Badgett

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Repeal Of "Don't Ask, Don't Tell:" A Smooth Transition, Sharon E. Debbage Alexander, Kathi S. Westcott

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Gender Trouble In The Law: Arguments Against The Use Of Status/Conduct Binaries In Sexual Orientation Law, Diane S. Meier

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Recently Arrested Adolescents Are At High Risk For Sexually Transmitted Diseases, Steven Belenko, Richard Dembo, Doris Weiland, Matthew Rollie, Christopher Salvatore, Alexandra Hanlon, Kristina Childs

Department of Justice Studies Faculty Scholarship and Creative Works

Adolescent offenders may be at high risk for sexually transmitted diseases (STDs). With previous research and interventions focused on incarcerated adolescents, data are needed on STD prevalence and risk factors among newly arrested youth released to the community, a far larger subgroup.Participants were recruited from all arrested youth processed at the Hillsborough County, Florida Juvenile Assessment Center during the last half of 2006 (506 males, 442 females). Participants voluntarily providing urine samples for drug testing as part of standard protocol were also consented to having their specimens split and tested for chlamydia and gonorrhea, using an FDA-approved nucleic acid amplification …

“Militant Judgement?: Judicial Ontology, Constitutional Poetics, And ‘The Long War’”, Penelope J. Pether

Working Paper Series

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou’s Being and Event, uses Badiou’s theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of “Islamic” asylum seekers, “enemy combatants” and “terrorism suspects,” and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …

Ensuring That Only Adults "Go Wild" On The Web: The Internet And Section 2257'S Age-Verification And Record-Keeping Requirements, M. Eric Christense

Brigham Young University Journal of Public Law

No abstract provided.

The $62 Million Question: Is Virginia's New Center To House Sexually Violent Prisoners Money Well Spent?, Molly T. Geissenhainer

University of Richmond Law Review

This comment examines Virginia's current civil commitment statute for sexual predators and attempts to identify areas where Virginia should concentrate its limited resources in order to address more adequately the ever-increasing problem of what to do with sex offenders. Part II briefly describes why sex offenders present law enforcement with unique problems in prevention and deterrence. Part III details the history of civil commitment legislation. Part IV examines Supreme Court of the United States jurisprudence regarding the constitutionality of sex offender civil commitment statutes. Part V examines the Virginia Sexually Violent Predator Act. Part VI briefly considers current violent sexual …

The Prison Rape Elimination Act: Implementation And Unresolved Issues, Brenda V. Smith

Scholarly Articles in Law Reviews & Journals

In September 2003, the United States Congress unanimously passed the Prison Rape Elimination Act (PREA). The Act was the culmination of a collaborative effort between human rights, faith-based, and prison rape advocacy. The aim of the Act is to create zero tolerance for prison rape by using a variety of tools or mechanisms including data collection; grants to the states; technical assistance to the states to improve their practices; research; the development of national standards; and the diminution of federal criminal justice assistance to states who fail to comply with the standards. This article aims to provide a brief background …

Rethinking Child Advocacy After Roper V. Simmons: "Kids Are Just Different" And "Kids Are Like Adults" Advocacy Strategies, Elisa Poncz

Cardozo Public Law, Policy & Ethics Journal

The article examines the tension between two competing arguments in juvenile law: "kids are just different" and "kids are like adults." It critiques the binary approach often used in child advocacy and proposes a more nuanced, patchwork strategy that combines both perspectives to better serve the diverse needs of juveniles. The analysis focuses on key legal contexts, including the death penalty, life without parole, and minors' rights in medical decision-making, education, and internet access. The author argues that a balanced approach is essential to address the complexities of juvenile rights and responsibilities.

Judging Sex In War, Karen Engle

Michigan Law Review

Rape is often said to constitute a fate worse than death. It has long been deployed as an instrument of war and outlawed by international humanitarian law as a serious-sometimes even capital-crime. While disagreement exists over the meaning of rape and the proof that should be required to convict an individual of the crime, today the view that rape is harmful to women enjoys wide concurrence. Advocates for greater legal protection against rape often argue that rape brings shame upon raped women as well as upon their communities. Shame thus adds to rape's power as a war weapon. Sexual violence …

Myspace In A Post-Grokster World: Digital Finger Pointing For Offenses Perpetrated Through Use Of Social Networking Sites After Mgm V. Grokster, Cheryl J. Eisner

Cardozo Public Law, Policy & Ethics Journal

The note examines the dismissal of a negligence lawsuit against MySpace, arguing that interactive computer services should not be held liable for offline harms committed by users. It emphasizes the importance of protecting such platforms under the Communications Decency Act (CDA) and highlights the need to balance free speech and technological development against concerns for user safety.

White Sexual Imperialism: A Theory Of Asian Feminist Jurisprudence, Sunny Woan

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush

UF Law Faculty Publications

This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives …

Managing Radical Disputes: Public Reason, The American Dream, And The Case Of Same-Sex Marriage, Keith J. Bybee, Cyril Ghosh

College of Law - Faculty Scholarship

This paper proposes that ambiguous arguments play a crucial role in the management of radical disputes in democratic deliberation. Lofty though it might be, public reason is an impoverished ideal, and its celebrated role in democratic deliberation is vastly overrated, particularly among liberal theorists. In the courts of law and in the larger world, radical disputes unfold as messy, incomplete, ambiguous arguments are proposed by parties. This does not mean that all communication between parties must break down because parties do not abide by the rules of argumentation and evidentiary reasoning. It only implies that the language of ambiguity offers …

Bare Justice: A Feminist Theory Of Justice And Its Application To Post-Genocide Rwanda, Megan M. Carpenter

Law Faculty Scholarship

Within this Article I seek to develop a feminist legal theory of justice, by questioning the ability of traditional legal strategies to facilitate justice and identifying underlying principles that contribute to a more inclusive and holistic form of justice. Secondly, I apply this theory to the situation of women victims of sexual violence in post-genocide Rwanda, in an effort to explore how these principles can contribute to a realization of justice that empowers women.

In Part II of this Article, I seek to develop a set of principles underlying a feminist reconceptualization of justice. This endeavour is a three-step process: …

Irrational Exuberance For Babies: The Taste For Heterosexuality And Its Conspicuous Reproduction, Jose M. Gabilondo

Faculty Publications

This article targets a flying buttress of normative heterosexuality: its physical reproduction via procreation and its symbolic propagation through parents' pre-natal preferences for heterosexuality in future children. While the parental "taste for heterosexuality" is often asserted for the sake of future children themselves, this justification overlooks the role of parental self-interest, including anticipated social gains to parents from heterosexuality in children. Hence the taste sets the stage both for sexual orientation-based abuse of future children and the devaluation of sexual minority adults. Courts too have a taste for heterosexuality, shown here in two state court cases denying gays and lesbians …