Sexuality and the Law Commons^™

Subsidiarity & Vulnerability Theory: A Case Study For Deepening The Relationship Between Catholic Social Teaching And The Responsive State, Nathaniel Romano

Catholic University Law Review

Religion and religious voices have long had a role to play in shaping community norms and values and public policy; this role continues in contemporary America. Yet, legitimate questions arise about the extent of this role and its place in a pluralist and democratic state. These questions are particularly pronounced when religion is perceived as partisan, a situation that seems apparent in contemporary America. Hoping to combat this perception, this paper explores the relationship between Catholic Social Teaching and Vulnerability Theory, aiming to show how religious values can inform legal theory across the political spectrum. This paper surveys both Catholic …

Litigation, Referendum Or Legislation? The Road To Becoming The First In Asia To Institutionalize Same-Sex Marriage, Tzu-Chiang Huang

Michigan Journal of Gender & Law

In the pursuit of same-sex marriage, advocates in each country evaluate the appropriate decision-making process for addressing this highly disputed issue—litigation, legislation, or referendum. The choice may be partially based on the institutional advantages of each approach, but more importantly, the choice is also conditioned by the legal and political context of each country, such as the authority of the court, the framing of public opinion, and the dynamics between movement and countermovement. Uniquely, all three decision-making processes are involved in the course of the institutionalization of same-sex marriage in Taiwan. This Article, focusing on the experience in Taiwan, examines …

Sex Trait Discrimination: Intersex People And Title Vii After Bostock V. Clayton County, Sam Parry

Washington Law Review

Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination and harassment on account of sex. Courts have historically failed to extend Title VII protections to LGBTQ+ people. However, in 2020, the U.S. Supreme Court decision in Bostock v. Clayton County changed this. Bostock explicitly extended Title VII’s protections against workplace discrimination to “homosexual” and “transgender” people, reasoning that it is impossible to discriminate against an employee for being gay or transgender without taking the employee’s sex into account. While Bostock is a win for LGBTQ+ rights, the opinion leaves several questions unanswered. The reasoning in …

False Promise To Marry And Other Forms Of Sex By Deception In India And Singapore, Wing Cheong Chan

Research Collection Yong Pung How School Of Law

Dishonesty is unfortunately a sad fact of life in human relationships. When a woman is duped by a man intohaving sex by lies and deception, what should the response of the criminal law be? Is it rape or just a game of seduction or something in between? This article sets out and evaluates the different approaches taken by India and Singapore in cases of sex by deception. It suggests that the approach adopted in Singapore could be a model for criminal law reform in this contentious area.

Sex And Coercion: Comments On Green's Criminalizing Sex, Michelle Madden Dempsey

Faculty Publications

In chapter seven of Stuart Green’s magnificent book, Criminalizing Sex, he considers the crime of rape by coercion. In doing so, he takes up several related questions, including how we should distinguish between coercive threats and so-called coercive offers, and how to distinguish between coercive and non-coercive offers. My comments proceed in five steps. In section one, I argue that we should not bother making any distinction between threats and offers, since the two are intertranslatable. In section two, I examine various baselines that might be used to identify coercive proposals (regardless of whether they appear in the form of …

The Romantic Author As Compelled Speaker, Sonya G. Bonneau

Georgetown Law Faculty Publications and Other Works

The romantic author trope has been extensively criticized in the copyright context, yet it threatens to emerge as a new pillar of First Amendment compelled speech jurisprudence. Justice Thomas’s concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission exemplifies the trope’s rhetorical power, and the costs of that approach. Casting the baker as an artist, Justice Thomas finds that creating custom wedding cakes was speech, and that applying a public accommodations law to require service to a same-sex couple triggered strict scrutiny review. This is an extraordinary result. Although the Court never adjudicated the compelled speech claim, it will …

Anonymous Hacktivism: Flying The Flag Of Feminist Ethics For The Ukraine It Army, Ellen Cornelius

Homeland Security Publications

No abstract provided.

Men's Rights, Gun Ownership, Racism, And The Assault On Women's Reproductive Health Rights: Hidden Connections, Walter S. Dekeseredy

Dignity: A Journal of Analysis of Exploitation and Violence

In this current era characterized by much fear of, and anxiety about, the political influence and actions of the U.S. alternative right (alt-right), only a small number of men’s rights organizations receive attention from the media, the Democratic Party, or a large cadre of progressives. This article demonstrates that ignoring all-male anti-feminist organizations is a flawed strategy for challenging the recent rise of the alt-right because these misogynistic groups are heavily involved in the gun rights movement, major contributors to racist practices and discourses, and active participants in efforts to criminalize and curtail women’s access to abortion. Another, but equally …

Queer Liberation's Long March Towards Equality: How Lgbtqia+ Advocates May Seek To Combat The Rise Of Anti-Lgbtqia+ State-Level Legislation And Substantiate Broader Lasting Legal Protections In A Post-Bostock World, Davis J. Villano

Cardozo Journal of Equal Rights & Social Justice

The note examines the implications of the landmark Supreme Court decision in Bostock v. Clayton County, Georgia, which ruled that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sexual orientation and gender identity. While this decision represents a significant step forward for LGBTQIA+ rights, the article argues that it does not provide comprehensive protection, as evidenced by the ongoing proliferation of anti-transgender legislation and hate crimes. It emphasizes the need for legislative action, particularly through the passage of the Equality Act, to address these gaps and ensure broader legal protections for LGBTQIA+ individuals.

Death By Dehumanization: Prosecutorial Narratives Of Death-Sentenced Women And Lgbtq Prisoners, Jessica Sutton, John Mills, Jennifer Merrigan, Kristin Swain

St. John's Law Review

(Excerpt)

At the core of every capital sentencing proceeding is a guarantee that before condemning a person to die, the sentencer must consider the humanity and dignity of the individual facing the ultimate sanction. This principle—that “death is . . . different” and, therefore, requires consideration of the “diverse frailties of humankind”—echoes throughout the United States Supreme Court’s Eighth Amendment jurisprudence. And yet courts are reluctant to remedy the devastating impact of prosecutorial arguments that dehumanize marginalized persons facing the death penalty, condemning these arguments while nevertheless “affirm[ing] resulting convictions based on procedural doctrines such as harmless error.”

These dehumanizing …

Judging Offensiveness: A Rubric For Privacy Torts, Patricia S. Abril, Alissa Del Riego

Articles

How do we judge whether a violation of someone's privacy is offensive? Currently, U.S. tort law requires privacy violations be "highly offensive to a reasonable person" to afford redress. However, our research reveals that there is no effective analysis-or rhyme or reason-to determine what conduct, disclosure, or implication is offensive. Our review of hundreds of privacy tort cases concludes that the ambiguity of the offensiveness prong has created opportunity for both significant legal errors and thriving biases, which often lead to discriminatory and neglectful treatment of women, racial minorities, and other marginalized groups. This is particularly alarming because the offensiveness …

Sexual Orientation, Gender Identity, And Homelessness Post-Bostock, Alaina Richert

University of Michigan Journal of Law Reform

Housing discrimination on the basis of sexual orientation and gender identity is a critical problem facing LGBTQ+ people in the United States. In addition, LGBTQ+ people, particularly transgender people, disproportionately suffer from homelessness and face discrimination by homeless shelters on the basis of sexual orientation and gender identity. This homelessness and discrimination both disproportionately affect transgender people of color. This Note makes two contributions that would enable courts to grant meaningful relief in these contexts. First, it argues that “sex” in the Fair Housing Act includes sexual orientation and gender identity after the holding in Bostock v. Clayton County. Second, …

Inconceivable Families, Malinda L. Seymore

Faculty Scholarship

Basic biology tells us that each child has no more than two biological parents, one who supplies the egg and one who supplies the sperm. Adoption law in this country has generally followed biology, insisting only two parents be legally recognized for each child. Thus, every adoption begins with loss. Before a child can be adopted, that child must first be cut off from their family of birth, rendering the equation of adoption one of subtraction, not addition. This Article examines the biological model of adoption that insists on mimicking the nuclear family—erasing one set of parents and replacing them …

Lgbtq Youth And The Promise Of The Kennedy Quartet, Michael J. Higdon

Cardozo Law Review

The Supreme Court has only issued four opinions endorsing the constitutional rights of sexual minorities, each of them authored by Justice Anthony Kennedy. These four cases, which this Article refers to collectively as “the Kennedy Quartet,” have done much to advance the equality of LGBTQ adults in the United States. The question remains, however, as to what extent those cases likewise protect LGBTQ children. Far from simply being an academic question, this issue has taken on increased urgency as legislators in a number of states—thwarted by the Kennedy Quartet in their ability to target LGBTQ adults—have turned their attentions to …

Isms In The Twenty-First Century: The Evolution Of Systemic Discrimination, Taylor Neas

University Honors Program

Long have the concepts of racism, sexism, and classism existed in human history. However, their definitions and practice have evolved over time. Modernly, they are all considered forms of discrimination. Recently, these topics have been a source of discussion among many disciplines. This thesis serves to add to existing literature outlining the history of these forms of discrimination and how they presented themselves in early American society. All three forms manifested in different forms in early civilizations before being adopted in colonial America. This work also serves to outline how these forms of discrimination exist in present day America. While …

_Not That Bad_: Lessons Women Learn In A Rape Culture, Sydney J. Selman

Pursuit - The Journal of Undergraduate Research at The University of Tennessee

In 2018, Roxane Gay assembled an anthology that addresses the severity of rape, rejecting the common belief that some sexually violent acts, compared to others, are not that bad. This collection, titled Not That Bad: Dispatches from Rape Culture, compiles pieces from thirty different authors and sheds light on how the notion of not that bad contributes to a broader structural social problem involving sexual violence. This social problem, known as rape culture, is commonly defined as a culture that normalizes sexual violence and blames victims of sexual assault (“What is Rape Culture?”). In other words, rape culture …

Transparency And Reliance In Antidiscrimination Law, Steven L. Willborn

Catholic University Law Review

All antidiscrimination laws have two structural features – transparency and reliance – that are important, even central, to their design, but have gone largely unnoticed. On transparency, some laws, like the recent salary-ban laws, attempt to prevent the employer from learning about the disfavored factor on the theory that an employer cannot rely on an unknown factor. Other laws require publication of the disfavored factor, such as salary, on the theory that it is harder to discriminate in the sunlight. Still other laws are somewhere between these two extremes. The Americans with Disabilities Act, for example, limits but does not …

Defining Sexual Orientation: A Proposal For A New Definition, Andrew Park

Michigan Journal of Gender & Law

Laws prohibiting discrimination based on sexual orientation are becoming more common in all parts of the world. Few of these laws provide useful definitions of the term sexual orientation. As a result, the meaning and impact of these laws remains unclear. This Article reviews past and current definitions of sexual orientation according to how well they incorporate current empirical knowledge of sexual orientation, and how their use in human rights laws impacts the dignity, right to equality, and human development of sexual minorities. The Article gives particular attention to the definition of sexual orientation found in the Yogyakarta Principles which …

The Effects Of “No Pro Homo” Policies On Lgbtq+ Perceptions In The American South, Isabella L. Brocato

Honors Theses

Five states in the American South currently have “no pro homo” policies in place, while an increasing number of bills targeting discussions about sexuality and gender identity in public schools are being introduced to House floors around the country. Although there is extensive research on the ways in which these policies put the physical and mental well-being of LGBTQ+ students at risk, there is little to no research about how they shape public perceptions of the LGBTQ+ community collectively. With inspiration from Kenneth and Mamie Clark’s social science study cited in Brown v. Board of Education (1954), this study works …

Legislating A Pathway To Improved Outcomes For People Living With Hiv And Lgbtq+ Nevadans, Dallas Harris, André Wade

Nevada Law Journal

No abstract provided.

Determining Marriage Length In Support Calculations: Should Cohabitation Count?, Mark Strasser

Journal of Law and Policy

Many states have sought to make spousal support awards more predictable by linking them to marital length. States doing so must decide whether to include premarital cohabitation within the calculation determining marriage duration, which for many couples will significantly affect the ultimate determination. This Article discusses some of the difficulties in achieving consistency and predictability in marital length determinations, focusing on how the supreme courts in Massachusetts and North Dakota have sacrificed those goals in their attempts to achieve what they likely thought to be more equitable results in individual cases.

Book Review: The Mighty Roe Has Fallen (Probably): A Call To Action As An Antidote To Despair, Loreen Peritz

Journal of Law and Policy

Reviewing CONTROLLING WOMEN: WHAT WE MUST DO NOW TO SAVE REPRODUCTIVE FREEDOM. By Kathryn Kolbert & Julie Kay. New York, NY: Hachette Books, 2021. 304 pp., $29.00

Indiana In The Midst Of #Metoo: The Argument For Enforcing Arbitration In Sexual Harassment Claims, Jonathan Cisneros

Pepperdine Dispute Resolution Law Journal

This note argues that it is in the best interest of sexual harassment victims and the state of Indiana to not follow suit in passing legislation that prohibits employers from requiring mandatory arbitration in sexual harassment cases. This is based on an analysis of the potential factors underlying Indiana’s current lack of legislative movement, the weight of the arguments for and against mandatory arbitration, and consideration of the preemption issues surrounding state laws banning mandatory arbitration. Part II sets the foundation for this note by laying out the most pertinent parts of the FAA and analyzing how the U.S. Supreme …

Disposable Immigrants: The Reality Of Sexual Assault In Immigration Detention Centers, Valerie Gisel Zarate

St. Mary's Law Journal

Abstract forthcoming.

Three Observations About Justice Alito's Draft Opinion In Dobbs - Commentary, John M. Greabe

Law Faculty Scholarship

[Excerpt] "There is much to say about Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, which was leaked from the United States Supreme Court on May 2 [2022].

Obviously, the most significant direct consequence of the proposed decision, which overrules Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) while upholding the constitutionality of a Mississippi law that outlaws most abortions after 15 weeks of pregnancy, would be the restriction or elimination of abortion services throughout much of the nation. This will have all sorts of attendant consequences, large and smaller, many of which …

Bostock, Backlash, And Beyond The Pale: Religious Retrenchment And The Future Of Lgbtq Antidiscrimination Advocacy In The Wake Of Title Vii Protection, Kyler J. Palmer

DePaul Journal for Social Justice

No abstract provided.

Madeira Serves As Legal Commentator In Netflix’S “Our Father”, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.

Bridges Of Law, Ideology, And Commitment, Steven L. Winter Walter S. Gibbs Distinguished Professor Of Constitutional Law

Law Faculty Research Publications

Law has a distinctive temporal structure—an ontology—that defines it as a social institution. Law knits together past, present, purpose, and projected future into a demand for action. Robert Cover captures this dynamic in his metaphor of law as a bridge to an imagined future. Law’s orientation to the future necessarily poses the question of commitment or complicity. For law can shape the future only when people act to make it real. Cover’s bridge metaphor provides a lens through which to explore the complexities of law’s ontology and the pathologies that arise from its neglect or misuse. A bridge carries us …

Is The End Of Roe V. Wade Near? Leaked Scotus Brief Says Yes, Nicole Huberfeld, Linda C. Mcclain

Shorter Faculty Works

Protesters on both sides of the abortion debate descended on the US Supreme Court Monday night and into Tuesday after a leaked secret draft of a US Supreme Court opinion indicated that a majority of justices support overturning Roe v. Wade, after almost 50 years of legalized abortion rights in America. If finalized, possibly as soon as this summer, the bombshell could trigger a cultural tsunami across American life, forcing some women to travel to another state for an abortion and putting the divisive issue at the heart of the fall midterm elections.

Beyond "Restoration Of Honor": Compensating Veterans For The Psychological Injuries Of The Gay And Transgender Bans, Evan R. Seamone

William & Mary Journal of Race, Gender, and Social Justice

This Article is titled “Beyond Restoration of Honor” specifically to introduce the policy priority of ensuring that all Sexual and Gender Identity Minority (SGIM) veterans who were harmed by...discriminatory policies [like Don't Ask, Don't Tell] can obtain and use Veterans Affairs (VA) disability benefits for injuries resulting from discrimination while in the military. While this Article highlights the value of codifying a series of specific SGIM stressor markers for PTSD in the VA’s regulations concerning personal assault and creating presumptions of service-connection for specific military experiences, existing laws and regulations permit service-connection for these injuries without further regulatory changes.

In …