Sexuality and the Law Commons^™

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 …

Factors Influencing The Credibility And Believability Of Victims Of Sexual Assault, Stephanie Carlson

Political Science Theses and Capstones

The purpose of this research is to answer the question of which factors that influence the believability of a woman who comes forward to disclose a sexual assault are the most impactful. My methodology consisted of conducting interviews with attorneys who have participated in both the defense and prosecution of criminal sexual conduct cases to evaluate whether the trends revealed in the literature on a macro scale apply to the micro-scale in northern Minnesota. Findings showed that the majority of patterns revealed in the literature did in fact influence the credibility of victims of sexual assault in Beltrami County, Minnesota …

Deliberately Indifferent: Institutional Liability For Further Harassment In Student-On-Student Title Ix Cases, Jacob R. Goodman

Vanderbilt Law Review

Sexual harassment is an unfortunate problem far too many have experienced. Universities and other educational institutions owe a duty, both legal and moral, to protect students from sexual harassment, and in turn to allow students to receive the full benefits of their education. But a circuit split has limited students' ability to hold educational institutions liable. This circuit split results in the absurd scenario where an individual must experience sexual harassment more than one time to hold their educational institution liable. This Note attempts to fix that by proposing Title IX (the law governing sexual harassment at educational institutions) adopt …

Identity Documents For Transgender Texans: A Proposal For A Uniform System For Correcting Gender Markers In Texas, Lydia R. Harris

The Scholar: St. Mary's Law Review on Race and Social Justice

Texas’s lack of a codified gender correction process is unjust, illegal, and against public policy. This comment highlights the injustice faced by transgender Texans without gender concordant identity documents. These injustices include discrimination based on gender stereotypes, violation of the transgender individual’s right to privacy, and violations of public policy. This comment explores possible solutions to the injustices faced by transgender Texans due to the lack of a codified uniform way to correct gender markers in Texas modeled on other jurisdictions’ approaches to this problem.

First, this comment traces the history of the recognition of transgender people and transgender rights …

Sexual Profiling & Blaqueer Furtivity: Blaqueers On The Run, T. Anansi Wilson

The Scholar: St. Mary's Law Review on Race and Social Justice

This article has taken some time to recollect. I have been struggling to find the grammar to communicate a phenomenon that is both central to BlaQueer life and beyond BlaQueer living. This difficulty, the silences, the gaps, the nonsensical and agrammatical nature of this phenomena—that of BlaQueer furtivity, the strict scrutiny of Black life and sexual profiling—are central features not only of this project but of the legal, extralegal and social logics and powers that mark, make and remake BlaQueer folks as always, already furtive, subject to strict scrutiny and necessarily sexual profiling. I have been struggling with whether to …

Credible: Why We Doubt Accusers And Protect Abusers: A Book Talk With Author Deborah Tuerkheimer, Deborah Tuerkheimer, Emily Sack

School of Law Conferences, Lectures & Events

No abstract provided.

Reproduction And Gender Self-Determination: Fertile Grounds For Trans Legal Advocacy, Samira Seraji

Michigan Journal of Gender & Law

Current medical constructions of trans identities reflect heterosexist understandings of gender expression—understandings that deny access to gender-affirming healthcare to those who fail to perform normative binary genders. As medical providers establish norms for how to “properly” be trans, the state codifies these norms, basing trans existence on rigidly defined and harshly enforced understandings of binary gender. When this construction of transness is codified on an institutional level, such as with gender reclassification rules for government identification, it forces trans people to conform their bodies to cisgender norms, and dangerously disrupts trans people’s bodily autonomy and diminishes their control over their …

Adjudicating Identity, Laura Lane-Steele

Texas A&M Law Review

Legal actors examine identity claims with varying degrees of intensity. For instance, to be considered “female” for the U.S. Census, self-identification alone is sufficient, and no additional evidence is necessary. To change a sex marker on a birth certificate to “female,” however, self-identification is not enough; some states require people to show that they do not have a penis to be considered “female.” Similar examples of discrepancies in the type and amount of evidence considered for identity claims abound across identities and areas of law. Yet legal actors rarely acknowledge that they are adjudicating identity in the first place, much …

Taking The "Fam" Out Of Family: Adjudicating The State Department's Discriminatory Treatment Of Same-Sex Parents On The Merits, Camrin M. Rivera

Maine Law Review

Cisgender same-sex male married couples, unlike cisgender opposite-sex married couples, will always require artificial reproductive technology (ART) for at least one of the spouses to attain biological parenthood. Due to legal and financial barriers to ART, many of these couples turn to international ART services to grow their families. In doing so, these families may face immigration battles when they apply for recognition of their child’s United States citizenship. For example, a prior State Department policy sparked three lawsuits after the State Department refused to recognize children as United States citizens from birth because the children were not biologically related …

Queer And Convincing: Reviewing Freedom Of Religion And Lgbtq+ Protections Post-Fulton V. City Of Philadelphia, Arianna Nord

Washington Law Review

Recent increases in LGBTQ+ anti-discrimination laws have generated new conversations in the free exercise of religion debate. While federal courts have been wrestling with claims brought under the Free Exercise Clause of the First Amendment since the nineteenth century, city and state efforts to codify legal protections for LGBTQ+ individuals in the mid-twentieth century birthed novel challenges. Private individuals who do not condone intimate same-sex relationships and/or gender non-conforming behavior, on religious grounds seek greater legal protection for the ability to refuse to offer goods and services to LGBTQ+ persons. Federal and state courts must determine how to resolve these …

The Public Accommodations Dilemma - Whose Right Prevails, Meg Penrose

Faculty Scholarship

This essay gives a brief history of religious liberty-based objections to public accommodations law promoting societal integration and provides a potential solution. It argues there are parallels between LGBTQ discrimination and race discrimination, including the continued resistance to full integration and equality. The essay suggests a potential solution to the public accommodations dilemma between anti-discrimination and religious liberty in redefining the scope of religious liberty. Courts should protect religious services and activities—not secular services and activities. The status (religious or secular) of the person providing services should be irrelevant. The focus of public accommodations laws, and legal challenges to these …