Sexuality and the Law Commons^™

Justice Scalia As A Modern Lord Devlin: Animus And Civil Burdens In Romer V. Evans, S. I. Strong

Faculty Publications

In the late 1950s and early 1960s, the legal world was captivated by an ongoing debate between two of England's most respected jurists regarding whether and to what extent morality should be reflected in the law. The debate was instigated by the publication of the Wolfenden Report, a study presented to Parliament as it considered whether to repeal certain antisodomy laws in Great Britain. Lord Patrick Devlin, then a Lord of Appeal in Ordinary and later elevated to the House of Lords, Britain's highest court, opposed the conclusions contained in the Wolfenden Report and supported the continuation of the antisodomy …

Romer V. Evans: A Positive Portent Of The Future, Micah R. Onixt

Loyola University Chicago Law Journal

No abstract provided.

Out Yet Unseen: A Racial Critique Of Gay And Lesbian Legal Theory And Political Discourse, Darren Lenard Hutchinson

UF Law Faculty Publications

No abstract provided.

Equality Under The Law Or Annihilation Of Marriage And Morals? The Same-Sex Marriage Debate, Germaine Winnick Willett

Indiana Law Journal

No abstract provided.

Ex Post Facto Laws: Supreme Court New York County People V. Griffin (Decided December 5, 1996

Touro Law Review

No abstract provided.

Suppressing Memory, Lynne Henderson

Scholarly Works

No abstract provided.

Polygamy And Same-Sex Marriage, David L. Chambers

Articles

In the American federal system, state governments bear the responsibility for enacting the laws that define the persons who are permitted to marry. The federal government, throughout our history, has accepted these definitions and built upon them, fixing legal consequences for those who validly marry under state law. Only twice in American history has Congress intervened to reject the determinations that states might make about who can marry. The first occasion was in the late nineteenth century when Congress enacted a series of statutes aimed at the Mormon Church, prohibiting polygamy in the Western territories and punishing the Church and …

Introduction, Paul F. Campos

Publications

No abstract provided.

Acts Of Power, Crimes Of Knowledge: Some Observations On Desire, Law And Ideology In The Politics Of Expression At The End Of The Twentieth Century, Francisco Valdes

Articles

No abstract provided.

Sexual Character Evidence In Civil Actions: Refining The Propensity Rule, Jane H. Aiken

Georgetown Law Faculty Publications and Other Works

When claims of sexual misconduct are made, two threads are often seen in the kinds of questions raised: Did she "invite it," and has he ever done it before? The way these questions are handled can determine the outcome of a sexual misconduct case. In 1995, Congress weighed in on whether these questions could be asked in civil cases in federal court and adopted two significant changes to the rules of evidence. One, revised Rule 412,4 extends "rape shield" protection to civil actions that claim sexual misconduct, including sexual harassment. The other, new Rule 415,5 allows plaintiffs to offer evidence …

Foreward (Symposium: Critical Perspectives On Megan’S Law: Protection Vs. Privacy), Nadine Strossen

Articles & Chapters

No abstract provided.

Comparatively Speaking: The Honor Of The East And The Passion Of The West, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

In this Article, I will attempt a comparative review by examining in the United States the crime that has the most affinity with the crime of honor in the Arab World: the killing of women in the heat of passion for sexual or intimate reasons, which is seen in the United States as one of many instances in which the more generic crime of passion can occur. For the purposes of this Article, I will use the term "crime of passion" as it is so specifically defined. The reason for the exercise is to locate precisely the meaning of the …

Marriage Today: Legal Consequences For Same Sex And Opposite Sex Couples, David L. Chambers

Articles

Laws that treat married persons in a different manner than they treat single persons permeate nearly every field of social regulation in this country -- taxation, otrts, evidence, social welfare, inheritance, adoption, and on and on.

Free Speech At Work: Verbal Harassment As Discriminatory (Mis)Treatment, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

In his reply to my article on workplace harassment law and freedom of speech, Professor Volokh does not respond to my most important critiques of his earlier work. For example, he fails to grapple with the true complexity of the problem by focusing exclusively on one side of this conflict of rights-the burden that the law imposes on workplace expression. Equal attention must be paid to the other side: the harm inflicted by discriminatory speech on employees of a single gender. As I describe in detail in my original piece, these harms may include: an adverse effect on the quantity …

Playing Defense, Robert F. Nagel

Publications

Noting that the Romer opinion condemns the motives behind Amendment 2 without pausing even briefly to examine the social context in which it was enacted, Professor Nagel describes the decision as a model of the intolerant impulse in action. He traces this impulse to the Justices' unwillingness to examine their own role--and that of the rest of the constitutional law establishment--in creating the underlying conditions that produced Amendment 2.

In order to identify those conditions, Professor Nagel analyzes the primary document used by Colorado for Family Values during its campaign on behalf of the initiative. He argues that this document …

Nothing And Everything: Race, Romer, And (Gay/Lesbian/Bisexual) Rights, Robert S. Chang, Jerome Culp

Faculty Articles

In this article, Professors Chang and Culp propose that the Supreme Court's decision in Romer v. Evans, viewed by some scholars as a progressive case about gay/lesbian/bisexual rights, has little to do with gay/lesbian/bisexual rights as such. They argue that whatever protection Romer provides to gays, lesbians, and bisexuals is provided not because of their sexuality but, rather, despite it. The authors demonstrate their thesis by examining the racial underpinnings of the Court's opinion, which begins with Justice Harlan's famous dissent in Plessy v. Ferguson and which relies on a specific vision of color-blindness. This submerged racial jurisprudence provides the …

The Fearful Symmetry Of Gay Rights, Religious Freedom, And Racial Equality, Walter J. Walsh

Articles

A decade has now passed since Julia Cooper Mack authored her most controversial judicial opinion, Gay Rights Coalition of Georgetown University Law Center v. Georgetown University. That opinion provoked two acts of Congress aimed at its reversal, newspaper editorials from coast to coast, and over one hundred scholarly authors debating its wisdom. In this short essay, I shall suggest that this extended hermeneutic debate has yet to touch upon the deepest implications of Judge Mack's Georgetown opinion. While recent scholarship on this story praises Judge Mack's unusual ability to reconcile clashing interest groups, a more accurate account might be …

What's Wrong With Sexual Harassment, Katherine M. Franke

Faculty Scholarship

In this article, Professor Franke asks and answers a seemingly simple question: why is sexual harassment a form of sex discrimination under Title VII of the Civil Rights Act of 1964? She argues that the link between sexual harassment and sex discrimination has been undertheorized by the Supreme Court. In the absence of a principled theory of the wrong of sexual harassment, Professor Franke argues that lower courts have developed a body of sexual harassment law that trivializes the legal norm against sex discrimination. After illustrating how the Supreme Court has not provided an adequate theory of sexual harassment as …

Legal Ordering Of Family Values: The Case Of Gay And Lesbian Families, Craig W. Christensen

Cardozo Law Review

In the ordinary course of events, an adoption proceeding in the New York County Surrogate's Court is an unlikely candidate for attention in the editorial pages of the New York Times. But In re the Adoption of a Child Whose First Name is Evan was not an everyday proceeding, as Times columnist Anna Quindlen observed.

Homosexuals, Torts, And Dangerous Things, Katherine M. Franke

Faculty Scholarship

Negligent, intentional, and strict liability torts. From a canonical standpoint, whatever else one might teach, it is not a first-year torts course if these three concepts are not covered. Torts has a canon, even a Restatement. Yet a canon evolves only after some criteria of value has been established such that privileged texts can be identified according to some authoritative standard. In other words, a canon is the result of a process by which a rule of recognition identifies authoritative texts.

At what point can we say that torts became a field and an intact legal subject, the canon …

Juno Moneta: On The Erotics Of The Marketplace, Jeanne L. Schroeder

Articles

The article explores how property and the feminine, as legal fictions, facilitate the creation of subjectivity through the lens of Hegelian philosophy and Lacanian psychoanalysis. It critiques the liberal individual as an insufficient concept for subjectivity, arguing that subjectivity is constructed, not natural. The analysis examines how legal frameworks privilege masculine metaphors, such as possession, while repressing feminine ones, and posits that the pursuit of a perfect market represents a destructive ideal that undermines freedom and subjectivity.

The Good Of Marriage And The Morality Of Sexual Relations: Some Philosophical And Historical Observations, John M. Finnis

Journal Articles

This article examines the morality of sexual relations, referencing the views of many other scholars on the subject including Acquinas, Grisez, Noonan, and Koppelman.

Suppressing Memory, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.

Without Narrative: Child Sexual Abuse, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.

Pornography Drives Technology: Why Not To Censor The Internet, Peter Johnson

Federal Communications Law Journal

Historically, the development of new media has been advanced by the creators of pornography. This was evident as communications media evolved from vernacular speech to movable type, to photography, to paperback books, to videotape, to cable and pay-TV, to 900 phone lines, to the French Minitel, and to the Internet. In short, pornography, far from being an evil that the First Amendment must endure, is a positive good that encourages experimentation with new technology. Accordingly, society should not view cyberpornographers as pariahs, rather they should be viewed as explorers who pave the roads for civilization to follow.

Estranged Fruit: The Reconstruction Amendments, Moral Slavery, And The Rearticulation Of Lesbian And Gay Identity, E. Nathaniel Gates

Cardozo Law Review

David A.J. Richards has composed a thoughtful and suggestive narrative that centers on the excavation of the antislavery constitutionalism forged by a small, but arguably influential, group of antebellum abolitionist feminists. Central to his narrative, and to the constitutional theses of the abolitionist feminists, is the concept of "moral slavery" which, on Richards' account, constitutes a crucial element of the hermeneutic background essential to a proper interpretation of the Reconstruction Amendments. According to Professor Richards, an understanding of the figure of the abolitionist feminist as a "multiple exile and outcast" who in opposing "moral slavery" played a vital role in …

Sex In The Sunlight: The Effectiveness, Efficiency, Constitutionality, And Advisability Of Publishing Names And Pictures Of Prostitutes' Patrons, Courtney G. Persons

Vanderbilt Law Review

An interstate billboard warns visitors to La Mesa, California: "Attention johns: We take pictures." In 1994, to widespread political accolades, the city initiated a policy of publishing names and pictures of prostitutes' patrons in local newspapers. La Mesa is not alone. If nightmares about the revelation of the contents of Heidi Fleiss's little black book sent shivers down the spines of Hollywood's rich and fa- mous, the tremors have traveled through La Mesa and sent similar shudders across the nation. The anonymous sex once so sought-after for its secrecy has been slapped up on billboards as communities, desperate to disinfect …

Attainder And Amendment 2: Romer's Rightness, Akhil Reed Amar

Michigan Law Review

Call me silly. In fact, call me terminally silly. For despite Justice Scalia's remarkably confident claim, I believe, and shall try to prove below, that the Romer Court majority opinion invalidating Colorado's Amendment 2 was right both in form and in substance, both logically and sociologically. I stress "form" and "logic" at the outset because I share Justice Scalia's belief in the importance of these things in constitutional adjudication. I also share his commitment to constitutional text, history, and structure, and his suspicion of "free-form" constitutionalism. And so I shall highlight the text, history, and spirit of a constitutional clause …

Is Amendment 2 Really A Bill Of Attainder? Some Questions About Professor Amar's Analysis Of Romer, Roderick M. Hills Jr.

Michigan Law Review

As I first discovered as a law student in Professor Amar's classes on legal history and federal courts, it is generally an intellectual treat to listen to Professor Amar's legal analysis, even when he is attacking one's own arguments. So my pleasure at reading Professor Amar's analysis of the Court's decision in Romer v. Evans was only partly dampened by his disapproval of the respondents' brief that I and other plaintiffs' counsel filed with the Court. According to Amar, this respondents' brief provided the Court with "so little help" that it had to rely on an entirely different and much …

Freestanding Legal Pragmatism, Thomas C. Grey

Cardozo Law Review

John Rawls has recently presented liberalism as a political philosophy that can stand free of the comprehensive moral and metaphysical views with which it has been associated. You don't have to be a neo-Kantian like Rawls, so he argues, to accept his Kantiansounding theory of justice. Millian utilitarians, Aristotelian perfectionists, and Thomistic theists can also commit to the basic liberal rights: democratic government, freedom of speech and religion, equal opportunity, the rule of law, private property, and a welfare safety net. Rawls believes that there is no need for citizens to resolve their deepest philosophical disagreements in order to be …