Sexuality and the Law Commons^™

Ely At The Altar: Political Process Theory Through The Lens Of The Marriage Debate, Jane S. Schacter

Michigan Law Review

Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, …

In Search Of Parity: Child Custody/Visitation And Child Support For Lesbian Couples Under “Companion” Cases Debra H. And In Re H.M., Jason C. Beekman

Cornell Law School J.D. Student Research Papers

The United States is engaged in a national debate over whether to grant same-sex couples the rights and privileges of marriage. Supporters of marriage equality flood the media with images of jubilant same-sex couples simply wanting the chance to say their “I dos” and have the state formally recognize their shared love and commitment. The unfortunate reality is, however, that many homosexual relationships, like heterosexual relationships, dissolve. Marriage rights play as important a role at a relationship’s dissolution as they do at a relationship’s inception. This paper focuses on one such issue often left out of the public discourse over …

Odious Discrimination And The Religious Exemption Question, Laura S. Underkuffler

Cornell Law Faculty Publications

Recently, claims have been asserted that religious exemptions should be afforded to individuals who object to providing public and commercial services to gay and lesbian individuals, as otherwise mandated by law (e.g., municipal clerks who must grant same-sex marriage licenses, or commercial vendors who are asked to serve at same-sex weddings). This article argues that just as religious exemptions of this sort are not granted for discrimination on the basis of race, religion, national origin, or gender, they should not be granted for discrimination on the basis of sexual orientation or transgender status. Discrimination on the basis of an individual's …

Compensating Differentials For Sexual Harassment, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper provides evidence of the relation between the risk of sexual harassment and wages. While one approach to detecting the effect on wages of sexual harassment would be to estimate wage equations controlling for whether an individual reports that he or she had been sexually harassed, sexual harassment on the job is unlikely to be exogenous with respect to wages, and it is difficult to identify appropriate variables that would allow instrumental variables estimation. In addition, there are almost no data reporting information on sexual harassment as well as wages and other determinants of wages. To avoid these problems, …

The Politics Of Free Exercise After Employment Division V. Smith: Same-Sex Marriage, The "War On Terror," And Religious Freedom, Richard Schragger

Cardozo Law Review

No abstract provided.

Odious Discrimination And The Religious Exemption Question, Laura S. Underkuffler

Cardozo Law Review

No abstract provided.

Determinants Of Domestic Minor Sex Trafficking And The Urgent Need For A Global Cultural Shift, Karen M. Hoover

Senior Honors Theses

In the United States, an overtly selfish and sexual culture contributes to the spread of human trafficking, thereby requiring a complete culture shift in order to diminish this modern day slavery initiated by the aberrant culture. Sex trafficking of minors in the United States encompasses a variety of factors that facilitate the bondage and brutal enslavement of American children. These children are bought and sold hundreds of times, with no regard for their personal well-being. Major factors such as demand, vulnerability, and America’s induced culture of sex serve to increase the environment that trap children and youth in commercial sexual …

The Equal Access Act Requires Equal Access For All: Why The Rowan-Salisbury School System's Policy Against Sex-Based Clubs, Developed To Ban Gay-Straight Alliances, Is Illegal, M. Blake Huffman

North Carolina Central Law Review

No abstract provided.

Disgust And The Problematic Politics Of Similarity, Courtney Megan Cahill

Scholarly Publications

No abstract provided.

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 …

Resolving Conflicts Of Constitution: Inside The Dominican Republic's Constitutional Ban On Abortion, Mia So

Indiana Law Journal

No abstract provided.

Open Service And Our Allies: A Report On The Inclusion Of Openly Gay And Lesbian Servicemembers In U.S. Allies' Armed Forces, Suzanne B. Goldberg

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

In the wake of the Obama Administration’s pledge to repeal
“Don’t Ask, Don’t Tell” in the United States, the Columbia Law
School Sexuality & Gender Law Clinic undertook a review of how
allies of the United States moved from a policy of banning gay and
lesbian servicemembers from serving in the armed forces to a policy
of allowing these servicemembers to serve openly (“open service”).
In documenting this review, this report aims to provide information
about the decision to implement open service and the mechanics of
the transition to open service in Australia, Canada, Israel, and the
United Kingdom. In …

Work, Caregiving, And Masculinities, Ann C. Mcginley

Scholarly Works

In her book Reshaping the Work-Family Debate, Joan Williams demonstrates the vulnerability of parent workers in working class America. In Chapter 2, "One Sick Child Away from Being Fired," she examines the records of ninety-nine union arbitrations to analyze the problems of working class parents who struggle to juggle their working and parenting responsibilities. Because this chapter is a tour de force in an overall excellent book, and because it suggests an area that Professor McGinley's research has focused on over the past number of years, in this Essay, Professor McGinley limits her discussion almost exclusively to this chapter. …

"Till Death (Or Doma) Does Us Part": How Doma Imposes An Unconstitutional Classifying And Coercive Condition On Federal Funding In The Wake Of Massachusetts V. United States Department Of Health And Human Services, Erin Bender

Richmond Public Interest Law Review

This Note suggests that the Court adopt a new test that would look at a condition attached to federal funding and determine whether it is a classifying condition or a coercive condition. Under this new test, a classifying condition will be deemed constitutional unless it violates equal protection principles; a coercive condition, on the other hand, will usually implicate the unconstitutional conditions doctrine.' On July 8, 2010, in Massachusetts v. United States Department of Health and Human Services, Judge Tauro of the United States District Court for the District of Massachusetts granted Massachusetts' motion for summary judgment by determining that …

"Till Death (Or Doma) Does Us Part": How Doma Imposes An Unconstitutional Classifying And Coercive Condition On Federal Funding In The Wake Of Massachusetts V. United States Department Of Health And Human Services, Erin Bender

Law Student Publications

Part II of this Note provides a short legislative history of DOMA and an overview of Spending Clause jurisprudence. Part III provides an overview of Judge Tauro‘s opinion in Massachusetts. Finally, Part IV of this Note analyzes Section Three of DOMA under the proposed classifying/coercive condition approach to the Spending Clause and concludes that Section Three of DOMA would be unconstitutional as either type of condition.

Burying Our Heads In The Sand: Lack Of Knowledge, Knowledge Avoidance And The Persistent Problem Of Campus Peer Sexual Violence, Nancy Chi Cantalupo

Georgetown Law Faculty Publications and Other Works

This article discusses why two laws that seek to prevent and end sexual violence between students on college campuses, Title IX of the Educational Amendments of 1972 ("Title IX") and the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act ("Clery Act"), are failing to fulfill that goal and how these legal regimes can be improved to reach this goal. It explicates how Title IX and the Clery Act ignore or exacerbate a series of "information problems" that create incentives for schools to "bury their heads in the sand" with regard to campus peer sexual violence. These …

'Til Death Do Us File Joint Income Tax Returns (Unless We're Gay), Daniel Milstein

Cardozo Public Law, Policy & Ethics Journal

The note examines the legal and constitutional challenges posed by the Defense of Marriage Act (DOMA) in relation to same-sex marriage, arguing that DOMA unconstitutionally infringes on state authority and denies equal protection to same-sex couples. It highlights how DOMA's definition of marriage as between a man and a woman conflicts with evolving state laws recognizing same-sex unions and the federal government's traditional deference to state marriage determinations. The analysis centers on key court rulings, including Massachusetts v. U.S. Department of Health and Human Services and Merrill v. Commissioner, which address DOMA's validity and its implications for federal tax …

Sex And Hiv Disclosure, Aziza Ahmed, Beri Hull

Faculty Scholarship

What do you consent to when you have sex with someone? What if the person is a new sexual partner from a night at a bar? What if the person is your spouse or long-term partner? In these two scenarios, people might understand both HIV risk and HIV disclosure differently. Close reflection demonstrates that a purportedly clear set of criminal laws rarely reflects the complexity of sexual interaction.

This article explores how the dynamics of HIV disclosure prior to sex contribute to an ongoing dialogue about disclosure and consent: Does a person have a right to know his or her …

Disgust And The Problematic Politics Of Similarity, Courtney Megan Cahill

Michigan Law Review

Martha Nussbaum's latest book, From Disgust to Humanity: Sexual Orientation & Constitutional Law, could not have come at a more opportune time in the history of gay rights in the United States. All signs point to progress toward "humanity," from same-sex couples' successful bids for marriage equality in a handful of states to the public's increasing acceptance of the prospect of gays and lesbians serving openly in the military. Even if recent cognitive science research indicates that same-sex relationships provoke more than a little disgust in some people, landmark marriage-equality victories in a few states suggest that the law is …

Same Sex Marriage: Does The Constitution Or State Constitution Support Same-Sex Marriages?, Sonja Seehusen

University of the District of Columbia Law Review

No abstract provided.