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Abrams, Kerry, and Peter Brooks, Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation. 21 Yale J.L. & Human. 1-36 (2009).
Abrams and Brooks reflect on various historical and bases for marriage in culture (Levi-Strauss, Foucault) and law (Griswold, Loving, Zablocki), and respond to the recent argument against same sex marriage, that marriage is intended to send a message to potentially-irresponsible procreators, and the institution should be limited to those potential procreators. The argument comes from the Goodridge dissent ("An orderly society requires some mechanism for coping with the fact that sexual intercourse [between a man and a woman] commonly results in pregnancy and childbirth. The institution of marriage is that mechanism." (Goodridge, 798 N.E.2d at 995)), though it has since been taken up by other courts. The authors reject this as well as other reductionist definitions of marriage as unappealing and insufficiently persuasive: "If the historians are right, and we no longer think of marriage as alliance-building but instead consider it as a step on the path to personal self-fulfillment, can the law alone limit the institution by insisting that it exists to spread a message about self-denial and channeling of urges? We seriously doubt it."
Can marriage be altered to accommodate same-sex couples and also remain a robust institution for heterosexuals? The author answers this question with an emphatic “no.” The author describes marriage as an institution which effectively regulates procreation, and argues that altering marriage for same-sex couples will create loopholes which can be exploited by selfish heterosexual husbands and wives.
More sociological than legal in emphasis, this article discusses the comments of respondents to a qualitative study of lesbian parents in the United Kingdom. Respondents discuss routes to conception and involvement of fathers in children’s lives.
In such a fast moving area of the law, there is always the likelihood that events will over take articles. Here, the author is writing before the California Supreme Court has affirmed that then-current state law banning same-sex marriage violated the state constitution (which she favors), and before the subsequent passage of Proposition 8, which amended the constitution to reinstate the ban. Still, works such as this can be helpful to readers looking for a review of the lay of the legal land as it stood at that time.
The author recommends Canada as a model of marriage incrementalism for the United States. Under this scheme, "a more effective constitutional approach may be to push for more state laws banning sexual orientation discrimination. After this, advocating for state civil unions and then federal recognition of civil unions are crucial steps toward same-sex marriage." In this sense she is arguing a version of William Eskridge's Equality Practice (Routledge, 2002), in which he counsels postponing marriage rights for gay men and lesbians until the majority of Americans have grown comfortable with the idea; and against James Donovan's argument that rights are not the kind of thing that can be parceled out without doing damage to the idea of the right itself ("Baby Steps or One Fell Swoop?: The Incremental Extension of Rights is Not a Defensible Strategy," 38 Cal. W. L. Rev. 1 (2001)). Whether one accepts Alquist's view hinges largely on whether one accepts her claim that "Regardless of what same-sex relationships are called or how they are perceived, same-sex couples deserve equality and for now, at a minimum, equality needs to mean access to the federal benefits and obligations afforded heterosexual married couples." Some believe that the primary good of marriage -- however useful the government benefits may be -- is in fact the way it changes the perception of the same-sex relationship as being valued and worth supporting. Those who prioritize these intrinsic intangible benefits of marriage over the economic and practical ones, will probably continue to push for marriage.
Three parent family constellations are becoming more common. Recent cases in Canada -- e.g., A.A. v. B.B., 83 O.R.3d 561 (2007) -- illustrate a possible future within the United States, where third parents have been typically judicially recognized only "a second father for the purposes of collecting child support in a heterosexually headed family where the mother has divorced and remarried." Lacking is any routine status of "two parents performing the full panoply of parenting duties and a third parent providing limited social parenting," as is the hope for families headed by same-sex couples. The author analyzes the Uniform Parentage Act to see what changes would be required "to accommodate multiple parenthood within this population subset."
This article explores the differences in moral reasoning between what are referred to as the “Abrahamic faiths” (Christianity, Judaism, and Islam), and those who support same-sex marriage. In exploring these differences, the author looks at the role of reason in comparison to emotion, the role of children, and the idea of freedom with respect to sexual unions. Finally, the author explores the consequences of adopting the moral reasoning of those who support same-sex marriage, and concludes that it could be detrimental to religious institutions. The author reiterates questions concerning the “legal severance of the tie between sexual love and new life…public ideals about marital fidelity…[and] the subordinate[ion] of the legal importance of biological ties.” The author also is particularly concerned about negative implications for family law, specifically the best interests of the child, adoption, custody, child support, and inheritance.
Anderson, the HIV project director at Lambda Legal Defense, provides an excellent account of the difficulties encountered by LGBT and HIV positive men and women who seek the use of assisted-reproductive technologies (“ART”). These barriers include restrictions on sperm donation by gay and HIV positive men, denial of insurance coverage for ART, and denial of ART based on the provider’s religious beliefs or biases. This article provides a summary of the various types of ART and defines the basic terminology involved. In addressing the barriers to ART, Anderson makes reference to federal disability law, federal constitutional rights, FDA regulations and nonbinding recommendations, state laws relating to disability and insurance policies, and federal and state caselaw. The last part of the article describes various legal strategies to challenge the barriers LGBT and HIV positive men and women face when attempting to use ART. In the discussion of legal strategies, Anderson gives an account of recent caselaw where Lamda Legal has represented litigants.
Parent-child relationships are impacted when states take conflicting positions on whether to recognize a same-sex relationship. The author advocates changes to the Uniform Parentage Act to incorporate more gender-neutral principles, to promote consistency in the law, and to “avoid treating children differently based on their parents’ marital status.”
This discussion of “the presumption of legitimacy” in parenting cases reveals tensions between some feminist theorists and gay rights advocates. The author suggests an approach to parentage cases that emphasizes genetics and gestation as central to recognition of gender equality. In particular, she examines how a biological emphasis may lead to different treatment for heterosexual and lesbian couples, in opposition to gay male couples, who seek legal recognition as parents of a child.
Recent headline events -- the author specifically cites the raid on the Yearning for Zion compound in Texas on suspicions of polygamy (see http://en.wikipedia.org/wiki/YFZ_Ranch) as well as court cases A.A. v. B.B.,  278 D.L.R. (4th) 519, and Jacob v. Shultz-Jacob, 923 A.2d 473 (Pa. Super. Ct. 2007) -- have called attention to the priority family law has placed on the two-parent dyad, either to enforce or challenge it. Appleton aligns herself with those who support "multi-parentage," in which a child can have more than two parents, and writes to deepen and elaborate the defense of that view. She particularly calls attention to the ways in which the field's mantra to "child's best interest" could be fundamentally reshaped. Law does not merely recognize preexisting interests, but helps to shape them. She favors "a more pluralistic and nuanced approach that respects diversity among families and is sufficiently capacious to honor a given child's experience."
Badgett, research director of the Williams Institute for Sexual Orientation Law and Public Policy, consistently offers what is lacking in many of the most hotly debated questions impacting LGB persons: empirical data. Here she examines the "double edged sword" of two such questions. The first is the role of LGB persons in the national economy. On the one hand is a popular stereotype that -- because we typically lack offspring and are two-salaried households -- we have more disposable income and are generally more affluent than heterosexuals. This is counterbalanced by concerns that this fact earns us resentment. In actuality, the stereotype is false, with gay men in couples earning an average 13% less than married heterosexual men. Similarly, despite the broad benefits of marriage, negative impacts can arise in the context of divorce, poverty ("state spending on public assistance would drop considerably if same-sex couples were allowed to marry or to enter civil unions"), and the income tax's marriage penalty. Overall, the article's disparate observations fail to coalesce into a sharp point, but the data bits are valuable in themselves.
Baker believes that "family law as a discipline is shifting from a set of rules designed primarily to regulate sexual relationships between adults to a set of rules designed to regulate parental relationships between adults and children." Decreased emphasis on marriage has created a "desperate need of a system to determine parenthood." The role played by social arrangements like marriage can now, she suggests, be played by biology. The values of parental "bionormativity" are that it should be private ("meaning that the state has no legitimate interest in regulating, but also no requirement to finance, parenthood") and binary ("there are at least two and only two parents"), and discourages functional parents (those who, while lacking a biological tie to the child, invest time, love and money). While the author claims that a bionormative regime does not "necessarily follow conventional political lines" -- in other words, that this is not fancy theoretical dress for fundamental conservative social policies -- it is difficult to take that assertion seriously. Pointing out the possibility that in that environment "someone eager to legitimize families with gay parents may be enthusiastic about a binary requirement for parenthood because a binary rule makes it more likely that a non-biological related partner will retain legal status," it seems more likely that it will disfavor such partners in the event of split, given the disfavor of "functional" parents.
The author compares the backlash against desegregation which occurred after Brown v. Board of Education [347 U.S. 483 (1954)], to attacks on gay rights following Goodridge v. Dept. of Public Health [798 N.E.2d 941 (Mass. 2003)]. The author concludes that while backlash cannot be avoided in significant civil rights advances, it can be overcome.
Building on the author’s previous work asserting the morality of gay rights, this article argues that anti-gay adoption statutes in Florida and Oklahoma are immoral because they tangibly harm children (often relegating them to the foster care system) and use children as a means to send a message of disapproval about homosexuality.
Writing as part of a larger symposium on the fortieth anniversary of the Loving decision, Ball considers the detail that the plaintiffs in that famous case were also parents. Laws against miscegenation were often justified in terms of the potential offspring of such unions, and Ball finds that the concerns about children are echoed in today's conservative arguments against same-sex marriage. Both share the feature of essentializing a dualistic understanding of race and gender, leading the author to conclude that while most courts reject the relevance of Loving to same-sex marriage, "that case would seem to be highly relevant to an equality-based challenge to same-sex marriage bans given that the optimal parenting justification for those bans is grounded ... in the idea of natural, essential, and predetermined differences between men and women that is similar to the notion of natural, essential, and predetermined differences between whites and blacks that served as the normative foundation for the antimiscegenation regime."
The student author makes an intriguing proposal built upon the observation that "the debate over gay marriage [has] evolved into a balancing act that considers not only the rights of same-sex couples,but also the rights of these couple's children." Noting the rationales in cases like Lewis v. Harris, 908 A.2d 196 (N.J. 2006), and Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006), the author sees a potential opening in arguments for same-sex marriage, one based on "an Equal Protection challenge based on a child's right to presumed legitimacy at birth." While interesting on its face, the article perhaps does not fully confront the unintended fallout of making marriage legitimacy a function of procreation rather than, as it is for heterosexuals, a union between two adults.
This student note advances a commonly held, but erroneous argument that marriage is an intrinsically religious institution, and thus civil laws regulating it are unconstitutional. While well-intentioned, the position ignores the historical development of marriage in Western Civilization, in which Christianity came late to having any specific interest in it. The church wedding was elevated to the status of a sacrament only in the fifteenth century, and the presence of a priest required for a valid and binding marriage not until 1563 (see Lawrence Stone, The Family, Sex, and Marriage in England 1500-1800 (1979)). The secular interests in marriage have always been the more fundamental. So while this author argues that the state should cease to regulate marriage and leave these to religion, and instead offer civil unions, in fact it is as validly argued that the proper solution is the reverse.
In many states, family law has not responded quickly to accommodate the various permutations of the modern American family. Lesbian and gay families, in particular, are affected by the slow evolution of family law. Some courts, nonetheless, have upheld child support obligations of parents in same-sex families under equitable principles. Similarly, the American Law Institute supports impositions of child support via “parents by estoppel.” The author of this article provides an overview of the topic and supplies an array of recommendations for courts considering the issues.
The author explores same-sex marriage in the larger social context of the struggle for equal rights for queer people. She begins with a review of the types of discrimination homosexuals have faced over the years. In this context, the author addresses the issues of sodomy, pathology, employment, military service, hate crimes, parental rights, and ultimately family law and marriage. The author then retraces cases in Hawaii, Alaska, and Vermont, leading up to the Goodridge decision legalizing same-sex marriage in Massachusetts, before summarizing the post-Goodridge cases in New Jersey, Connecticut, Maryland, and Iowa, as well as the losses to the same-sex marriage cause in New York and Washington. Finally, the author concludes with her view of what the future may hold for same-sex marriage.
Since 1985, gay men have been prohibited from donating blood, as an effort to prevent the spread of HIV through transfusions. In June of 2010, a committee of the FDA recommended that the policy remain in force. For similar reasons, the FDA has identified "men who have sex with another man in the preceding 5 years" [MSMs] as the number one risk factor to be screened for communicable disease risk when seeking to donate sperm. While not functioning as an outright bar on donation, these risk factors could serve as a de facto bar and thus as a means of discrimination against gay men. Boso weighs the strengths and weaknesses for a variety of litigation strategies -- whether, for example, to sue the FDA, or the sperm bank in federal or state courts -- he hopes will "be effective in ending discrimination against gay and MSM potential sperm donors."
Bowen raises the important question of how the different legal relationships between each parent to the child -- where one partner is the biological parent or primary adopter, while the other is a second adoptive parent -- impact the dynamics of the family itself. Research suggests that "second parent adopters had much less emotional power in the family, but often had more economic power," setting up complementary insecurities. Unawareness of the rights and obligations that have been created in this situations, and lack of confidence in these legal protections when known, combine "to undermine these families on both a macro and micro level." Bowen recommends the creation of new legal presumptions about parenthood that will reinforce these family structures.
This article provides an economic analysis of the foster care system and the barriers to entry that same-sex partners must overcome to adopt a child. It argues that providing homosexuals with adoptive and other rights that heterosexuals enjoy would increase demand for adoption and reduce costs of foster care and of social welfare systems.
The author compares the arguments against same-sex marriage with the arguments used to oppose interracial marriage. The article begins by recounting the history of miscegenation laws and their ultimate demise in Loving v. Virginia [388 U.S. 1 (1967)]. Then, after a brief history of same-sex marriage case law, the author demonstrates similarities between this debate and miscegenation laws, focusing on the application of the Due Process and Equal Protection Clauses of the U.S. Constitution. The article concludes with a comparison of the African-American community’s unfavorable reaction to the comparison.
A general discussion of same-sex parenting is followed by specific attention to the legal status of same-sex co-parents in Missouri, which is unsure at best. This article may be helpful to persons researching developing law on same-sex parenting in conservative states. In the absence of statutory guidelines, the author advocates that courts use equitable theories to protect children born to same-sex couples.
The intent of this sizable review aims to provide a detailed snapshot of the state recognition of same-sex relationships as it existed at the time of writing. Toward this end, the treatment is comprehensive, beginning with an historical overview including Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996), the case that started the ball rolling. The authors/editors then discuss those states with anti-same-sex marriage constitutional amendments (Part II), those with a statutory ban (Part III), those that legally recognize same-sex couples (Part IV), and, in Part V, the federal issues such as DOMA and the Federal Marriage Amendment. While review articles such as this are quickly outdated (the California story ends, for example, well before the state supreme court overturned its ban and the reactionary Proposition 8 which followed), this piece strikes the right balance between length and detail.
The author creates a four part typology of state defense of marriage amendments: court-stripping amendments that reserves the question strictly to the legislature; marriage definition amendments that install a one-man-one-woman definition of marriage into the constitution; amendments that ban same-sex marriage and comparable statuses; and amendments banning recognition and the legal incidents thereof. Butland then ascertains the differential impact of the equal protection analysis of Romer v.Evans, 517 U.S. 620 (1996), for each of the four amendment types, concluding that types 3 and 4 violate the Romer standards, while types 1 and 2 do not.
The author discusses the Progressive Comparative (PC) Argument and how it is structurally imitative to conservatives’ slippery slope argument in regard to same-sex marriage. The PC argument states that it is irrational for the state to withhold marriage from committed same-sex partners because the state already allows other “unsavory” people to get married. The article provides multiple explanations why same-sex marriage proponents utilize the PC Argument and concludes by stating that such reliance is strategically counterproductive and normatively undesirable.
Cahill discusses the procreation rationale that has been employed in same-sex marriage litigation. The author discusses the idea that same-sex marriage is a type of counterfeit and how this designation has become common in the same-sex marriage debate. Cahill argues that even though the procreationist argument and the counterfeit rhetoric don’t make much sense as separate ideas, they make much more sense when examined together. She analyzes the history of sodomy and miscegenation in counterfeit terms to explain the procreationist rationale for prohibiting same-sex marriage. The author suggests that the image of same-sex marriage (and reproduction) as fraud is circular and revives the imagery of disgust that once surrounded sodomy regulation.
Building upon Martha Fineman's suggestion that "governmental support for the family ought to support relationships of dependency rather than the adult sexual bond between husband and wife," Cain illustrates the ways in which "current law is biased against dependent children in non-traditional families." Looking at three examples--filing status under the federal income tax, tax credits, and state inheritance taxes, she hopes policy makers will amend laws so that "tax rules that are intended to provide benefits to households with minor dependent children...provide those benefits to all households with minor dependent children."
In this contribution Cain provides an accessible catalog of harms imposed by the preference of the IRS Code for heterosexual relationships. The benefits denied to same-sex couples include those involving filing status and ability to split income, the taxation of fringe benefits, the marital deduction for gratuitous transfers, and rules involving tax-free property divisions at divorce. She also examines the tax burdens same-sex couples avoid because they do not fall under the negative tax consequences married couples encounter in some situations.
Cain here makes another contribution to her body of work on the tax problems of same-sex couples. Her focus in this article concerns the growing discrepancies in the way couples are treated between states and between state and federal tax regimes. These inconsistencies raise not only equity issues, but also practical ones for citizens and state tax authorities. The problem can be resolved, however, only by federal legislation that would overturn DOMA. She favors a federal law that ignores "marriage" and favors domestic partnerships, which would be taxed like a business partnership. Marriage would "no longer create penalties or bonuses," and any couple wishing "to form a tax partnership may do so."
This text takes an interdisciplinary approach to the issue of same-sex marriage, written from the viewpoint of scholars in both law and psychology. The legal scholars begin by tracing the development of the law with respect to adult sexual relations over the past forty years, both at the state and federal levels. The psychology scholars follow with a history of the theories of the origin of homosexuality, and the role that psychologists and psychiatrists have played in shaping public opinion of homosexuals. The text devotes three full chapters to children in queer families, providing empirical evidence in support of gays and lesbians as parents, as well as looking at issues associated with homosexuality and adoption. The book concludes with a review of marriage law in the U.S. and abroad, focusing on the practical benefits of marriage, and ultimately advocates for same-sex marriage.
This is a policy paper in opposition to the Federal Marriage Amendment (FMA). The author outlines four arguments against the FMA: 1) it is unnecessary because federal and state laws already make nation wide same-sex marriage unlikely for the foreseeable future, 2) the FMA is anti-federalist, especially in light of the fact that family law has traditionally been reserved for state regulation, 3) the FMA would cut short the democratic process, and 4) the amendment is poorly constructed overreaching, and possibly does not allow state legislatures the constitutional room to offer any form of legal support for same-sex relationships.
After exploring early Christian views regarding marriage and sexuality, and the historical role of polygamy in the Mormon culture, this article addresses defenses of same-sex marriage under Equal Protection and Due Process grounds. (The author extends Equal Protection doctrine to same-sex marriage, but concludes that Due Process “has not evolved enough to include same-sex marriages.”) After setting the stage, the author then responds to the common “slippery-slope” argument that legalization of same-sex marriage will lead to legalization of other forms of marriage, specifically polygamy. Ultimately, the author concludes that polygamy is distinguishable from same-sex marriage because “the history of plural marriage in the United States reveals a pattern of sexual abuse, incest, child-brides, poverty, and discrimination against women.”
This article covers the adoption controversy from the Catholic, English perspective. Echoing similar domestic reforms such as that in Washington, D.C. (http://www.catholicnewsagency.com/news/same-sex_marriage_law_forces_d.c._catholic_charities_to_close_adoption_program/), Catholic adoption agencies in England were compelled to consider a response to a new requirement that they not discriminate on the basis of sexual orientation. The author considers three broad strategies: Rejection of the new regulation, and withdrawal from the work of adoption (i.e., the route chosen by the Catholics in Washington, D.C.), acceptance of the requirement, or by an "arms-length agreement" that would remove "Catholic" from the name of the adoption organization, and severe direct administrative control by the diocese. She further reviews some implications for this latter choice in canon law.
Opinions in four states have recently upheld their bans on same-sex marriage: Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006); Andersen v. King County, 138 P.3d 963 (Wash. 2006); Lewis v. Harris, 908 A.2d 196 (N.J. 2006); and Conaway v. Deane, 932 A.2d 571 (Md. 2007). Cox first argues that the reference by both sides to "same-sex marriage" appears to be asking for a new fundamental right, one that is easier for opponents to dismiss than if the case were framed as a denial of a fundamental right to marry. She then looks at the dissenting opinions in these four cases, showing how it is these that "best protect marriage and [how it is that] the dissenting justices[' understanding of marriage] best explains why individuals in same-sex couples seek the right to choose it for ourselves."
David Cruz examines the ideology of the heterosexual reproductive imperative--the belief that the "species and society must be reproduced [and that] this is naturally and properly done only by women and men acting together, and women, queer, and transfolk should just recognize the primitive truth of that and willingly bear the burdens of laws designed to reinforce this natural reality"--for its impact upon women's reproductive autonomy, same-sex marriage claims, and transgender demand for recognition.
More on: heteronormativityCulbertson, Tucker, Arguments against Marriage Equality: Commemorating and Reconstructing Loving v. Virginia. 85 Wash. U. L. Rev. 575-609 (2007).
Culbertson argues that Loving v. Virginia, 388 U.S. 1 (1967), was wrongly decided. Instead of finding a fundamental right to marry, he insists the Court should instead "have renounced all governmental traditions that privilege civil marriage." It "presumes the legitimacy of illiberal and unequal sexual, religious,and other governance in order to condemn only the facial racial governance of antimiscegenation law." He believes--erroneously, it must be said--that "any of [marriage's] possible ends" are owed equally "to unmarried and unmarriable persons," and that consequently "the status afforded civil marriage is irrational and illegitimate."
While much of the debate over same-sex marriage has focused on questions of rights, Culhane directs attention to a different inline of argumentation, that of public health. In this light the central question is whether the public goods from marriage "would be realized by marriage equality?" While assertions that gay marriage would be harmful to society have been "cast in general, speculative terms," the author constructs "a preliminary case that allowing same-sex couples to marry would materially advance public health."
The same-sex marriage debate assumes that government should promote and define marriage. Davis argues for an alternative model where government would protect marriage-like relationships by enforcing private agreements. The article discusses the impact of governmental promotion of marriage, and the costs and benefits of moving to an alternative model.
Anthology consisting mostly of papers presented at a 2005 conference at Trinity College in Dublin. Contributors explore moral, philosophical and legal issues related to committed relationships under law, with an emphasis on same-sex couples and their families and the law of Ireland.
More on: IrelandDurand, Melissa, From Political Questions to Human Rights: The Global Debate on Same-Sex Marriage and Its Implications for U.S. Law. 5 Regent J. Int'l L. 269-298 (2007).
The author contends that the movement in support of same-sex marriage is inconsistent with traditionally recognized human. The author argues that same-sex relationships are distinctly different from heterosexual marriage, and that they “do not fit well with the social and economic characteristics of traditional marriage laws.” The author explores the legalization of same-sex marriage in the Netherlands, Spain, Canada, and South Africa, as well as Massachusetts, and attempts to draw a correlation between legalizing same-sex marriage, and a break-down in the institution of marriage, the family, and community.
Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951(Vt. 2006), is a complicated interstate custody dispute between lesbian ex-partners involving conflicting decisions of Virginia and Vermont state courts. Dye provides a detailed history and analysis of the situation and the more recent Vermont decision, which has resulted in a conflict that “will have to be resolved by the United States Supreme Court.”
Eaton provides in-depth review and analysis of the New Jersey Supreme Court’s decision in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), requiring that same-sex couples be treated equally under the law, but deferring to the legislature the decision of whether or not to call it “marriage”. Ultimately, the New Jersey legislature adopted civil unions instead of same-sex marriage. The author argues that civil unions are inherently unequal.
An immediate problem with this student piece is the author's use of the idiosyncratic "same-gender loving" as opposed to "gay" or even "LGBT." He explains this choice as following from his disagreement "with the message or politics of the Euro-American 'gay-rights movement'" embodied in those terms. Even so, his alternative (besides being awkward) highlights a distracting confusion between sex and gender--no law prevents same-gender relationships or marriages, gender being a social and psychological construct, so long as the biological sexes are different. If one is able to look past this poor choice, the thesis of the piece is that the current probate laws pose difficulties for same-sex couples (one need look no further than the economic impact upon photographer Annie Leibovitz from the estate she received after the death of her partner, Susan Sontag, but which also extend to the increased likelihood of successful challenges by relatives of the deceased partner), problems that he thinks could be resolved through "pre-death mediation."
More on: ProbateEinhorn, Talia, Same-Sex Family Unions in Israeli Law. 4 Utrecht L. Rev. 222-235 (2008).
Family and domestic relations in Israel are governed by religious courts, which not only make no allowances for same-sex unions, but oppose them. This article offers an impressive review of the legal options available to gay and lesbian couples. The overall lesson is that, within the confines of the theocratic institutions, a secular judiciary has operated with sensitivity and flexibility, but any ultimately resolution must come from the Knesset.
Because of the federal Defense of Marriage Act (DOMA), the unions of same-sex couples are not recognized for purposes of the filing federal taxes. This reality has advantages and disadvantages, and the author looks at both. Specifically, the author explains the “marriage penalty” and the “marriage bonus”. The author also discusses adjustments to gross income, including mortgage interest, retirement account contributions, the Child Tax Credit. Finally, the author explores the issues involved in estate planning for same-sex couples, breaking up, and joint and several liability.
Transcript of an accessible and at times even entertaining conversation on same-sex marriage. Eskridge argues for strict scrutiny of a form of sex discrimination when same-sex couples are denied marriage licenses. There is perhaps not enough disagreement between Eskridge and his principle discussant, Lawrence Rosenthal, to make this a page-turner, which in itself says a lot about how far the issue has come.
More on: same-sex marriageEwing, Randall P., Jr., Same-Sex Marriage: A Threat to Tiered Equal Protection Doctrine?. 82 St. John's L. Rev. 1409-1446 (2008).
The tiered analyses under the Equal Protection Clause offer a complicated and not wholly consistent approach to deciding the validity of laws that negatively impact a discernible group. Ewing traces out the shortcomings, noting that the method has been criticized on a number of grounds, including its rigidity revealed in its "all-or-nothing approach. Unless a class meets the criteria for suspect or quasi-suspect status, the Court reviews all classifications under the deferential rational basis standard." He believes that cases litigating the right for same-sex marriage highlight both the standard federal approach's limitations, as well as the alternatives articulated in state courts. Particularly favored is the "unitary analysis" found in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), and Baker v. State, 744 A.2d 864 (Vt. 1999). This alternative incorporates all the concerns of the tiered approach. "In essence, courts should ask whether an impartial lawmaker could rationally believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. In assessing the harm to the disadvantaged class, courts should consider the invidiousness of the classification and the importance of the right involved. Against this, courts should balance the importance of the governmental interest and how effectively the classification serves that interest. This unitary standard abandons the current rigidity of tiered analysis and forces courts to conduct a thorough assessment of all relevant equal protection analysis."
The argument in this article is fairly straightforward: Among the constitutionally protected rights is "the ultimate personal liberty," right of intimate association, of which marriage is a basic example. Denial of marriage rights to gay men and lesbians also infringes the right to privacy, which both the new conservative members of the U.S. Supreme Court -- Roberts and Alito -- testified the Constitution protects. The "barest majority of the Supreme Court [thus] appears prepared to defend these fundamental rights and not to reify outdated theories of substantive due process or equal protection that have been repudiated during the past fifty years." An optimistic assessment, to be sure.
Artificial insemination [AI] poses a range of legal unknowns for lesbian couples. Attempts to clarify the relationship (or intended lack of one) between the semen donor and the recipient are not always enforced by courts. "Contracts for the donation of sperm may not be enforceable and the recipient of sperm may not be able to ensure that the donor will not seek custody at a later time. Similarly, the donor of sperm would be unable to terminate his parental rights or obligations through these contracts." The legal vehicle intended to resolve some of the issues, the Uniform Parentage Act, has been unevenly adopted by the states, leaving disputes arising from AI transactions difficult to resolve. The authors hope for clarifications to the UPA, as well as acceptance "of contracts between sperm donors and donees."
This rich legal history of same-sex parenting in America is punctuated by detailed analysis of significant cases from around the country. A traditional approach is presented in Nancy S. v. Michele G. [279 Cal. Rptr. 212 (Ct. App. 1991)], while a third-party treatment of same-sex coparents appears in five cases: In Re Olivia H. [101 Cal. Rptr. 2d 364 (Ct. App. 2000)]; In Re E.L.M.C. [100 P.3d 546 (Colo. Ct. App. 2004)]; In Re H.S.H.-K. [533 N.W. 2d 419 (Wis. 1995)]; E.N.O. v. L.M.M. [711 N.E. 2d 886 (Mass. 1999)]; and T.B. v. L.R.M. [786 A.2d 913 (Pa. 2001)]. Judicial recognition of same-sex coparenthood occurs in two analyzed cases: V.C. v. M.J.B. [748 A.2d 539 (N.J. 2000)] and In Re L.B. [122 P.3d 161 (Wash. 2005)]. Assisted reproduction cases involving same-sex parents include: Rubano v. DiCenzo [759 A.2d 959 (R.I. 2000)] and Elisa B. v. Superior Court [117 P.3d 660 (Cal. 2005)]. Enforcement of child support obligations in alternative insemination circumstances is discussed in Kristine H. v. Lisa R. [117 P.3d 690 (Cal. 2005)]. In addition to these listed cases, which are discussed in detail, several related cases receive passing attention. The article will be especially valuable to attorneys and researchers seeking citations and legal arguments.
Why has the right to marry emerged as a top priority for the gay community? What are the costs of this choice? Franke shows how the focus on marriage limits our identity, excludes many of us, and distracts away from issues of greater concern, such as the militarization of foreign policy.
Some of the sting of inequality of tax treatment between straight and gay couples can be offset through use of a section of the tax code allowing "grantor retained income trusts" ("GRITs"), an option not available to units the tax code recognizes as "families." The author argues that same-sex couples should be treated as a family unit by the tax code, which would prevent them from using this provision of the code to avoid tax liability on the transfer of wealth. This change is more in keeping with the policy goals of the tax code to both generate revenue while favoring family relationships. As such, while incurring a cost to current gay families, the change also represents a small step toward the federal recognition of same-sex couples, despite the commands of DOMA.
More on: taxationGartner, Nadine A. , Lesbian (M)otherhood: Creating an Alternative Model for Settling Child Custody Disputes. 16 Law & Sexuality 45-75 (2007).
This article proposes an alternative framework for settling child custody disputes among lesbians. This framework incorporates a mediation model that grows from and is supported by the local lesbian community. The article discusses why lesbian families are not adequately represented within existing court frameworks.
Gerstmann makes some hard arguments in this slim (210 pp.) volume. The goal of the text is to argue that the best argument for same-sex marriage is to be found in the fundamental right to marriage that has already be found by the U.S. Supreme Court in cases from Meyer v. Nebraska, 262 U.S. 390 (1923), to Griswold v. Connecticut, 381 U.S. 479 (1965), to finally Loving v. Virginia, 388 U.S. 1 (1967), Zablocki v. Redhail, 434 U.S. 374 (1978), and Turner v. Safley, 482 U.S. 78 (1987). This approach is not merely the better one, it is, he suggests, the only valid one. He underscores this conclusion with a scathing critique of the sex discrimination argument that had been advanced by the Hawaii Supreme Court in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993). The analogy with Loving fails, he believes, because while the discrimination in that case could be tied to a broader scheme of white supremacy, bans on same-sex marriage cannot be reasonably argued to disadvantage women relative to men. This reading can be somewhat difficult to someone who would prefer to leave every argumentative strategy on the table, but Gerstmann does a good job of showing that the fundamental rights argument is so persuasive that no one who would reject it would then be swayed by the weaker sex discrimination arguments.
In responding to the droning criticisms that allowing same-sex marriage will inevitably lead to polygamy, this author reviews the history of U.S. treatment of polygamous marriages, and considers whether gay marriage proponents should ally themselves with advocates of polygamy. She advises that the distance between the two groups be maintained "to avoid relinquishing the [same-sex marriage] movement's hard-earned cultural capital and societal support." At the same time, it should avoid maligning polygamy as "barbaric and misogynistic." While this counsel is undeniably pragmatic, given that the federal law against polygamy is the only prior instance of federal attempt to regulate marriage, willfully looking away from the lessons of that instructive example can be costly when turning aside proposals to similarly prohibit gay marriage at the national level.
More on: PolygamyGoldberg, Suzanne B., A Historical Guide to the Future of Marriage for Same-Sex Couples. 15 Colum. J. Gender & L. 249-272 (2006).
This article includes a short essay and the brief filed by history and family law professors in the New York appellate case, Hernandez v. Robles [7 N.Y.3d 338 (2006)]. The essay posits that arguments against same-sex marriage rely upon an inaccurate history of marriage. The brief traces the history of marriage in New York State. Both the brief and the article show that marriage has not remained consistent over time, and has not always been connected to procreation.
Goldhaber considers the impact on children of state Defense of Marriage Acts (“mini-DOMAs”), which deny recognition of the legal status of same-sex couples. It argues these states should allow both biological and non-biological parents in same-sex couples to have visitation/custody rights, when it would be in the best interest of the children.
With an abundance of photographs alongside personal accounts, this book documents the events leading up to the landmark Massachusetts Supreme Court decision of Goodridge v. Department of Public Health, which legalized same-sex marriage in Massachusetts. It also takes a look back at the history of the gay rights movement in Massachusetts and to a lesser extent the nation as a whole.
Emphasizing the need to protect the children of same-sex households, Graham observes that while the "debate on the legitimacy of same-sex partnerships has concentrated largely on the partners' relationship with one another...when considering the right of a child to have the parent/child relationship recognized between the two partners who intend to be his or her parent, the debate should focus on the children, rather than the partners." She analogizes from the immigration case of Plyler v. Doe, 457 U.S. 202 (1982), which argued that while adult illegal immigrants should suffer the consequences of their chosen illegal status, those disabilities should not necessarily extend to their children who did not choose the manner of their entry to this country. Likewise, the fallout of the adults' choice "to create a family unit not recognized or protected by state law" should not exact penalties on the children of those families.
When legislatures and courts refuse to recognize same-sex marriages and same-sex civil unions, they usually reject same-sex intestacy rights as well. The author of this article posits that states may reject formal recognition of the relationships for public policy reasons while still recognizing intestacy rights of survivors to a same-sex marriage or civil union. She says that this compromise allows states to exercise powers under the Full Faith and Credit Clause while still respecting the likely donative intent of a decedent and preserving wealth that two same-sex partners jointly generate.
This brief note asserts that adoptions by same-sex couples should not be recognized by other states under the Full Faith and Credit Clause because this practice abrogates citizens’ rights to establish their own state’s public policy through their legislatures. It argues that Congress should use the Effects Clause to combat such recognitions.
After a fertility doctor refused to perform an intrauterine insemination procedure due to his religious beliefs -- there was a disagreement whether he objected to the patient's status as a lesbian or as an unmarried woman -- the patient sued for a violation of California's Unruh Civil Rights Act. The California Supreme Court held, relying upon Employment Div. v. Smith, 494 U.S. 872 (1990), that there exists no First Amendment "exemption from a neutral and valid law of general applicability." Doctors are therefore not allowed to refuse to provide medical treatments due to their own religious beliefs, with two exceptions: The doctor can either cease to provide that service completely, or can refer the patient to another nonobjecting doctor within the same practice. The commentator views this as a realistic compromise. This ruling can be read in the context of moves by President Obama to overturn the Bush administration's hastily enacted "Provider Refusal Rule," which went into effect the day Obama took office, that has allowed doctors to claim such a religious exemption.
All the usual suspects in the same-sex marriage controversy are summarized: DOMA, constitutional amendments, full faith and credit, and conflict of laws. Although readers who are familiar with this area of law will find little new material, the article provides a fine introduction to the issues.
Recounting the famous civil rights test cases which led to the “separate but equal” doctrine and eventually the decision in Brown v. Board of Education of Topeka overturning that doctrine, this note draws parallels to the same-sex marriage test cases of today. The author begins with a history of support structures—“ organizations with political and financial backing that seek social change using the test case strategy among other tools.” Specifically, the author discusses the Brotherhood of Liberty and the Baltimore NAACP, and compares those organizations to GLAD, the Human Rights Campaign, and Lambda Legal. The author concludes that same-sex marriage test-case litigation has been successful in humanizing the issue, thus garnering public support. The author also encourages support structures to supplement their test-case strategy with “legislative advocacy and public protest to complement the litigation already in progress.”
The article provides a survey of an alternative model of marriage within contract and corporations law and seeks to evaluate this model’s potential effectiveness for arguing the recognition of same-sex marriage. After a discussion of the traditional “fundamental rights” path to recognition, the article turns to an examination of the corporations model of marriage and reviews the recent legal scholarship about this model. The author makes predictions regarding how courts might approach this model and concludes with a discussion about how this model could impact current notions of marriage.
Former partners of lesbians who choose to become parents through alternative insemination may be required to provide child support under varying legal theories, including estoppel and conflicts with public policy. Scenarios are presented through close examination of four court opinions: Elisa B. v. Superior Court [117 P. 3d 660 (Cal. 2005)]; Kristine H. v. Lisa Ann R. [117 P.3d 690 (Cal. 2005)]; L.S.K. v. H.A.N. [813 A.2d 827 (Pa. Super. Ct. 2002)]; and T.F. v. B.L. [813 N.E. 2d 1244 (Mass. 2004)]. After a survey of the case law landscape, the author offers “precautionary measures for same-sex parents” that may protect the interests of their children.
Using equal protection analysis, the author of this comment hypothesizes that anti-gay partnership laws cannot survive rational basis review because their scope is too far-reaching. On the other hand, he suggests that anti-gay marriage laws may survive rational basis review because they are tailored to address concerns about family and children. Romer v. Evans [517 U.S. 620 (1996)] and Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati [128 F.3d 289 (6th Cir. 1997)] receive special attention as the author attempts to draw the distinction.
Pulliam v. Smith, 501 S.E.2d 898 (N.C. 1998), "took custody away from a father who had been raising his two sons alone for years, merely because he was involved in a committed relationship with another man," and remains good law in the state. Huffman "aims to bring fresh attention to Pulliam and proposes a better standard for determining child custody in North Carolina when one parent is homosexual." He proposes the overturning of Pulliam "to return North Carolina to a true nexus test" that requires a proof of a connection between the alleged changed circumstances and the welfare of the child, and that would require "specific evidence of harm to the child from the sexual activity of the parent, thus reflecting the same standard for all North Carolina parents."
Adapted from a dissertation written by a sociology scholar, this text seeks to capture the cultural debate for and against same-sex marriage. The author examines the debate from a sociological perspective, and places the dialogue into context with interviews from same-sex couples. She argues that the language of the debate on both sides of the issue is deeply rooted in cultural ideology, and draws parallels to show that both sides are using similar arguments to arrive at different conclusions.
HRW provides a comprehensive report of U.S. immigration law and its effects on same-sex couples in the U.S., illustrated through compelling personal stories. Same-sex binational couples do not have the right to marry in the U.S.; consequently, such relationships do not enjoy the same privileges of immigration as their heterosexual counterparts. HRW, while it supports marriage equality, sees immigration equality as a separate issue, and advocates for the passage of the Uniting American Families Act (UAFA), which would add the category “permanent partner” to the classes of family members entitled to sponsor a foreign national for U.S. immigration. This report explores the history of exclusion from immigration in the U.S. based on gender and sexuality from McCarthyism to the HIV ban, and then reports on the lack of progress that has been made with respect to obtaining visas and immigration status for same-sex binational couples. Appendices to the report include the text of the UAFA, a list of countries protecting same-sex couples’ immigration rights, census information on binational same-sex couples in the United States, and a list of organizations that work with LGBT immigrants, asylum seekers, and binational couples.
Many Native American tribal governments recently enacted legislation which prohibits same-sex marriage. Jacobi argues that such legislation conflicts with traditional tribal values, which tolerated homosexuality. Jacobi explores the recent case of two Cherokee women who married, and how various tribes treated “two-spirit” (homosexual) individuals before European contact. Jacobi concludes by arguing that for many tribes, same-sex unions reflect historical tradition.
While holding in favor of same-sex litigants, remedial relief was delayed by the courts in both Goodridge v. Dept. of Public Health [798 N.E.2d 941 (Mass. 2003)] and Baker v. State [744 A.2d 864 (Vt. 1999)]. This author examines the doctrinal and political reasons for this delay. The author also discusses whether Goodridge was responsible for the 2004 presidential election, and whether Goodridge caused a political backlash against gay rights.
This student note argues that "bans on same-sex marriage violate the First Amendment's Establishment Clause." Of particular focus is Justice O'Connor's "endorsement test, which prohibits the government from conveying 'a message of endorsement or disapproval' of a particular religious viewpoint." The author applies this test "from the non-Christian's perspective to bans on same-sex marriage and concludes that these laws endorse the viewpoint of the dominant Christian majority."
This article discusses the novel question of whether takings jurisprudence can apply to same-sex marriage. Jois argues that marital status should be protected as a property interest, and applies the elements of a takings claim to cases where same-sex marriages were legalized or performed. States discussed include Massachusetts, Oregon, California, New Mexico, New York, and Maryland.
The author examines the parental status of non-biological lesbian parents with chidren born through artificial insemination. Although some states extend parental status to non-biological lesbian parents through various means, that status and the protections that go along with it may disappear when the family travels from state to state. The article discusses the inability for same-sex couples to maintain their legal parental status as they move around the country. It describes the numerous protections that legal parental status bestows on the children of same-sex couples. It then proposes an administrative registration system designed to establish legal parentage to children born through assisted reproductive technology.
The author argues that marriage has not been static, but rather has adapted to a changing society. The author then explores the evolution of the non-traditional family during the years leading up to the struggle for same-sex marriage, and ultimately, the Goodridge decision in Massachusetts, before comparing same-sex marriage in Massachusetts with same-sex marriage in other countries such as Canada, South Africa, Belgium, The Netherlands, and Spain. The article concludes with a discussion of interstate conflict arguments that may result from Goodridge.
All too often the debate over same-sex marriage takes on an erudite, disinterested intellectual tone as constitutional issues are pondered, social trends reviewed, and judicial opinions summarized. Knauer, a frequent writer on the topic, does some of this in her brief article about the shortcomings of federalism for this topic. The eye is drawn, however, to the concluding section which points out the real human costs of the disparate state approaches concerning gay and lesbian relationships.
Kohm et al. provide a cursory review of European laws and comparative analysis in order to extrapolate the effect that permissive same-sex parent adoption standards are having on the U.S. Rather than concede the issues as inextricably intertwined, the authors’ proclaim that the “best interest of the child” standard is often subordinated by gay rights concerns. The authors also illogically postulate that trends of low fertility rates correlate with more permissive adoption standards, therefore risking population decline.
When same-sex marriages become available, should corporate-sponsored domestic partner benefit programs be abandoned? This author votes no, and offers as reasons that couples may choose not to formalize relationships in order to avoid the stigma of homosexuality, that state recognition often results in something less than true marriage, and that domestic partner programs remain a "prudent business decision." While the latter two circumstances may justify corporate benefit programs, Kolli offers an unconvincing case that there exists a broader societal interest in maintaining marriage substitutes after true marriage becomes available. In that situation the stronger argument may be that those foregoing marriage should also forgo the benefits of marriage.
Relying heavily on miscegenation cases, this book attempts to apply choice of law doctrines to same sex marriages in the U.S. It examines the rules of marriage recognition, legal precedents originating from the interracial marriage controversy, and the public policy for and against same sex marriage. It surveys choice of law rules, and it proposes rules to determine when, and when not, to recognize same sex marriages.
The evolution of same-sex parenting rights in California is given both a historical and a theoretical examination in this article. The Uniform Parentage Act (UPA) and recent decisions by the California Supreme Court receive the bulk of attention: Elisa B. v. Superior Court [117 P.3d 660 (Cal. 2005)]; K.M. v. E.G. [117 P.3d 673 (Cal. 2005)]; and Kristine H. v. Lisa R. [117 P.3d 690 (Cal. 2005)].
In anticipation of a showdown between state and federal law, this author argues that the federal Defense of Marriage Act (DOMA) is unconstitutional in that it usurps state rights, under the Tenth Amendment, to define marriage. The author also explores the Due Process and Equal Protection claims against DOMA. Specifically, the author is concerned that a federal court may not extend the spousal privilege to same-sex spouses, thus requiring one same-sex spouse to testify against the other, or risk being held in contempt of court.
This article argues that Goodridge v. Dep’t of Health [798 N.E.2d 941 (Mass. 2003)] is consistent with U.S. Supreme Court precedent describing the right to marriage and the protections that the U.S. Constitution affords individuals with respect to this right. In addition, the article argues that in defining the rights of gay men and lesbians, it is appropriate for courts to consider actions by courts and legislative bodies of other countries. The author argues that when courts recognize rights for same-sex couples, they consequently respect the rights and dignity of all individuals.
A common argument against same-sex marriage invokes fears that its practice would incur "negative externalities," or costs borne by those outside the marriage (see, e.g., Charles Murray, "Love Has Nothing To Do With It," 50 S. Texas L. Rev. 77 (2008)). These authors attempt to test this claim empirically, specifically that "same-sex marriage will have negative impacts on marriage, divorce, abortion rates, the proportion of children born to single women, and the percent of children in female-headed households." They compare data from all fifty states for the years 1990, 2000, and 2004, and conclude that no adverse outcomes follow from permitting same-sex marriages or civil unions, and indeed there may be signs of positive outcomes on these criteria. As the depth of data is quite shallow -- gay marriages being allowed in only two states in 2004 -- it is possible that more extensive data covering more years and more gay-friendly states will show a different result. But work such as this represents a welcome relief of solid data in an arena better known for its baseless assertions.
Oops. Lau reads Parents Involved in Community Schools v. Seattle School District, No. 1, 127 S. Ct. 2738 (2007), the majority of which included four conservatives, as introducing a new form of equal protection analysis that -- while created to resolve a dispute over racial integration in public schools -- can also be applied to bolster arguments for same-sex marriage. The sex discrimination argument for same-sex marriage has received little support in courts because the ban on marrying someone of your own sex "is applied equally to men and women." Virginia used this same argument to defend its anti-miscegenation laws in Loving v. Virginia, 388 U.S. 1 (1967), but lost because in practice the law "reinforced white supremacy." LGBT advocates have had a difficult time making a similar argument that banning same-sex marriage supports a gender-based hierarchy. Those difficulties have now been removed, says Lau, because as a result of Parents Involved "laws that make race-based distinctions -- even equally applied distinctions in integration programs -- are now subject to heightened scrutiny regardless of their substantive effects." In other words, Loving would have been decided the same way under the new rule even without a finding that the practice supported white supremacy, opening the door for a similar reassessment of the sex-discrimination argument for same-sex marriage.
A student-written note, this piece analyzes the inconsistent stances of those states that deny same-sex couples the right to marry, yet allow them to adopt children. The author urges courts to reconcile these inconsistencies by incorporating broader definitions of family and relationships into same-sex marriage cases. The author suggests that such an approach would allow courts to conclude that gay men and lesbians have a fundamental right to marry that states could not legally impede.
This balanced collection of essays considers the growing conflicts between the rights of same-sex couples and the religious liberty of opponents of same-sex marriage, that arise under, e.g., antidiscrimination laws, tax exemptions for religious entities and healthcare provider conscience policies. Including both marriage equality supporters (Chai Feldblum) and opponents (Charles Reid), contributors and editors consider how such conflicts might be avoided and, when unavoidable, how they may be resolved. Alternative solutions range from one in which the same-sex couple usually prevails to those that insist same-sex marriage must not be recognized; others seek a compromise aimed at balancing the conflicting interests and preserving the dignity of persons on both sides. This book provides an enlightening exchange of views in a debate that will become more prominent as the fight over marriage continues.
Discussion in the popular press (e.g., the Advocate's Dec. 16, 2008, cover issue on whether "Gay is the New Black") have added urgency to the long-standing question of the proper relationship of antimiscegenation laws against interracial marriage--and the judicial decisions that overturned them, including Loving v. Virginia, 388 U.S. 1 (1967)--to the current bans on same-sex marriage. Lenhardt suggests that the key to reframing this debate is to look at Loving's predecessor, Perez v. Sharp, 198 P.2d 17 (Cal. 1948). Perez encourages not an "analogy" that compares two different groups, but "a deeper appreciation of the extent to which state-imposed obstacles to marriage have operated to police identity, restrict opportunities for self-definition, and impede belonging."
Lester first explores the debate within the gay community regarding whether marriage should be the focus of gay rights activism. To tease out an answer to the question presented in the title, Lester discusses the Tenth and Fourteenth Amendments, Loving v. Virginia [388 U.S. 1 (1967)], Romer v. Evans [517 U.S. 620 (1996)] and Lawrence v. Texas [539 U.S. 558 (2003)]. Lester analyzes the opinions of each current Justice for indicia of future rulings, and concludes that a same-sex marriage victory may occur in the Supreme Court.
Gender-neutral domestic violence laws, Little believes, are an imperfect solution to the problem of assuring protections to same-sex couples. While a step in the right direction, such laws fall short in several ways, such as failing to recognize "societal homophobia [as] another 'arsenal of terror' in a same-sex relationship" that can manifest either in the types of violence inflicted -- e.g., Richardson v. Easterling, 878 A.2d 1212 (D.C.C. 2005) -- or in the responses from system officials (Rucks v. State, 692 So.2d 976 (Fla. Dist. Ct. App. 1997)). New questions have been raised whether such laws violate recent constitutional prohibitions on same-sex marriage, as well as the extension of benefits of marriage to unmarried individuals, as was argued in State v. Nixon, 845 N.E.2d 544 (Ohio Ct. App. 2006) and State v. Ward, 166 Ohio App. 3d 188 (2006). She advocates as remedy the inclusion of language extending these protections to same-sex couples.
Proposed legislation in the Texas Senate would prevent lesbians and gay men from becoming foster parents. A Fourteenth Amendment analysis of the legislation is followed by a discussion of a Florida case, Lofton v. Secretary of the Department of Children and Family Services [157 F. Supp. 2d 1372 (S.D. Fla. 2001)], in which a federal court upheld a Florida ban on adoptions by lesbians and gay men. Rather than discriminate by statute, the author suggests a case-by-case approach to child placement that includes sexual orientation as one among multiple considerations.
The author explores the due process and equal protection analysis used by courts in same-sex marriage cases, and the effect of public attitudes on case outcome. The author concludes that courts are side-stepping constitutional principles to craft holdings which conform to public opinion.
After examining the interaction between state supreme courts and legislatures, Miller turns his attention to Massachusetts. Miller explores the different institutional perspectives held by the court and legislature, and concludes that greater communication is needed between these two branches of government.
This article explores the implications of Goodridge (legalizing same-sex marriage in Massachusetts) on real estate law in Massachusetts as compared to other states in the New England region. The author concludes that although same-sex couples can now marry in Massachusetts, they “are not free to hold title as tenants by the entireties and enjoy all of the rights and benefits afforded them as such.” Rather they are joint tenants, which the author argues is an important distinction—as joint tenants, the couple will act as two individuals, whereas in a tenancy by the entirety “the cotenants are intrinsically linked together in their ownership ‘as one person.’” In comparing Massachusetts with other states in the New England area, the author found the laws in Vermont and New Jersey (both of which have civil unions as opposed to marriage) to be much more explicit, extending the rights of tenancy by the entirety to same-sex couples.
The author argues that we are in the midst of a cultural shift with respect to the societal view of gay men and lesbians. The book begins with a review of the events of the past decade, and a discussion of the prejudices and obstacles still faced by lesbians and gay men. The author dedicates chapters to the issues of sexual privacy (from Bowers v. Hardwick to Lawrence v. Texas), same-sex marriage, equal protection, civil rights (housing, employment, and public accommodations), and gays in the military.
The author focuses on the antisubordination aspect of Loving v. Virginia [388 U.S. 1 (1967)], and how it can be utilized in the same-sex marriage context. The article begins with a summary of the debate which compares antimiscegenation laws to laws banning same-sex marriage and how Loving’s principles of freedom of choice, antidiscrimination, and antisubordination apply in both contexts. The article also argues how same-sex relationships challenge White supremacy and concludes by focusing on same-sex marriage as a civil rights issue.
While advocating a restricted judicial role and a narrow reading of constitutional mandates, Walker posits that the decision in Lawrence v. Texas [539 U.S. 558 (2003)] strengthens the claims of polygamists for constitutional protection. To bolster his argument, the author reviews the central polygamy case, Reynolds v. United States [98 U.S. 145 (1878)] and Goodridge v. Department of Public Health [798 N.E. 2d 941 (Mass. 2003)]. Walker informs readers in footnote 1 that he does not advocate polygamy.
This article provides an extensive comparison between recent U.S. case law regarding same-sex marriage and the landmark case of Minister of Home Affairs v. Fourie, 2006 (1) SA 524 (CC), which established same-sex marriage in South Africa. The author also analyzes the role that foreign and international law could and should play in deciding future cases and legislation regarding same-sex marriage in the U.S. in light of its consistent reluctance to do so.
The authors raise the intriguing point that, given the existence of a federal constitutional amendment prohibiting same-sex marriage, no private or public party would have standing to bring suit. In the first case the amendment creates no right, and "the tests for the type of injury sufficient to gain legal standing could not be satisfied by a third party complaining about another's marriage." The Eighteenth Amendment -- "the only relevant case in our constitutional history" -- offers an ambiguous record that the authors suggest failed due to the "infeasibility of federal enforcement" of morality. "Thus, with neither private nor public enforcement actions created by it, the proposed marriage ban would be a provision lacking legal effect."
A clear overview of the science and ethical issues of embryonic technologies precedes an examination of case law and prediction of how the Court should rule on genetic modification of embryos predisposed to an undesirable sexual orientation. Paonessa articulately surmises that the state’s interest arises at viability, and prior intervention is insufficient to preclude the use of these technologies should they become available.
Thomas Paprocki is an Auxiliary Bishop of Chicago and Adjunct Professor at Loyola University Chicago School of Law, and this article is taken from his remarks at a conference on the legal issues of same-sex relationships. Paprocki presents the Catholic viewpoint in opposition to same-sex marriage. He argues that the nature of marriage as a union of one man and one woman is rooted in human history, and that simply because the church supports this status quo, it does not imply a violation of the First Amendment Establishment Clause. He also compares civil law with natural law, while making the claim for the uniqueness of procreation.
K.M. v. E.G. [117 P.3d 673 (Cal. 2005)] is the focus of this discussion of the Uniform Parentage Act (UPA). The author asserts that the court improperly applied the UPA, although she supports the ultimate outcome of the case, in which each lesbian partner was granted the status and duties of a “parent.”
Pinello chronicles the same-sex marriage movement in the United States by interviewing fifty same-sex couples as well as numerous public officials and interest group representatives. These in-depth interviews are woven together to recreate the story of the struggle for same-sex marriage in communities around the country. He concludes with a discussion of children and same-sex marriage, a comparison of the various same-sex civic models (civil unions, domestic partnerships, reciprocal benefits), and the roles of the courts and legislatures.
Pingree delves extensively into the historical details of the cultural and legal furor surrounding Mormon polygamy that culminated in the decision of Reynolds v. U.S. [98 U.S. 145 (1878)]. He pays special attention to the rhetorical depiction of the practice, believing that the insights extracted from this study can productively inform other debates occurring at the same intersection of autonomy and community, not least that about same-sex marriage.
Rather than a legitimate experiment in the laboratories of the states, federalism offers instead only a stage of historical accident for the thrashing out of the same-sex marriage controversy. Poirier frames the struggle instead as a "kulturkampf," or culture war, a term invoked by U. S. Supreme Court Justice Scalia in his Romer v. Evans dissent (517 U.S. 620, 636 (1996)). The error of the first view is that the state is the proper level of analysis at which to frame the central arguments at issue in marriage adjudication. In contrast, Poirier points out that the "core dynamics are either local and place-based, or are universal and aterritorial." Resort to federalism is therefore "tactical" rather than central, a "beachhead" attempt to make opportunistic arguments. "Where Kulturkampf and cultural identity are concerned, federalism simply is not the main event."
In the well-trod path of arguments over same-sex marriage, it is rare to come across a piece that strikes the reader as presenting something new. Here, Poirier refigures the traditionalist arguments against gay marriage in a way that not only makes them more intelligible, and may mark a path toward new and more effective counterstrategies. His thesis is that these claims are of the same sort "as is often made by Native Americans, indigenous, and other culturally-subordinated groups to certain cultural resources -- a right to exclude others in order to protect sacred objects, places, and rituals, so as to preserve and perpetuate group identity over time.... Access to marriage by same-sex couples is understood by traditionalists to threaten the desecration of this ritual, status, and identity" in much the same way that Native Americans believe allowing tourists into areas sacred to them reduce them to the mundane, ordinary, and profane. Poirier does not believe that such traditionalist claims should be determinative -- any more, one might observe, than Native American claims have proven successful in most instances in which they have been asserted -- but the insight offered by the comparison, he hopes, will open up "a different line of potential progressive responses to the traditionalist claim."
Polikoff believes the LGBT community has been too narrowly focused on obtaining access to civil marriage, when the focus should be on creating a legal framework that values all families equally. Her solution will appeal to those who view children as the purpose of creating families -- of her "three principles for valuing all families," for example, the first two concern children, with relationships between adults falling a distant third. Thus, in her model, when designing employer-provided health benefits, my partner will be covered only if there are funds left after providing for everyone else's children (p. 149). Whatever this system might be, it is not one that "values all families equally" since it prioritizes the childless couple as inferior to those with offspring. While her motives to expand protections are admirable, she moreover fails to consider the administrative obstacles to awarding full financial benefits to any aggregate of individuals who present themselves. Her argument is strongest when framed by the family's united front before employers and governments, but weakest when considering how the interests of the various persons are to be weighed when such ephemeral groups--marked by no formalities or registration requirements--disintegrate.
Part of a 2006 symposium, LGBTQ Law 2006: Legal Issues Affecting Ourselves and Our Families, Prol's paper criticizes the New Jersey opinion in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), for stopping short of requiring full marriage equality. The New Jersey legislature has failed, and indeed must necessarily fail to provide civil unions that are equivalent to marriage in all but name. In addition to noting the lack of federal recognition, Prol recounts the ways in which later state legislation neglects to include civil unions. He illustrates the point through new laws adding irreconcilable differences as a basis for divorce, but which did not explicitly extend to civil unions. The result is that New Jersey attorneys "may have to engage in expensive motion practice" to claim this ground to terminate civil unions, a cost not borne by heterosexual married couples. The bottom line is that the label "marriage" offers value not contained in civil unions, and consequently unions are inherently unequal and inferior to state-recognized marriages.
Purvis provides a potential line of argument for those seeking domestic partnership rights drawing upon cases in the late 19th century seeking to use the right to contract to overturn interracial marriage bans. Although those cases were unsuccessful, Purvis argues that an increasingly contractual view of marriage makes this a viable argument for domestic partnership rights.
More on: antimiscegenationReed, James A. and Michael R. Kohlhaas, Family Law Issues Concerning Gays, Lesbians and Their Children Under Indiana Law. 50 Res Gestae 14-24 (2007).
Reed and Kohlhaas provide an overview of Indiana case law addressing two family law issues important to homosexuals. The authors first provide a history of cases addressing property rights gained during non-marital cohabitation, including cases involving heterosexual couples which may be applicable to homosexual couples. The authors then detail the cases addressing the status of homosexual parents in child custody and adoption proceedings.
More on: IndianaRichards, Steve., . A Guide to the Civil Partnerships Act 2004. Brighton: Emerald (2006).
This book describes the United Kingdom’s Civil Partnerships Act 2004, which recognizes the legal status of same-sex relationships, and examines the Act’s provisions and impact in areas such as tax, inheritance and parenting, as well as international aspects and the role of courts in dissolution proceedings.
In her analysis of 78 dissents in appellate cases involving gay, lesbian, and bisexual parents between 1975 and 2004, the author posits that dissenting opinions are a valuable source of new information about cases and legal issues at hand. The role of dissenting opinions in family law and sexuality and law cases is also more broadly discussed.
Before reading this article one might wish first to become familiar with the works of Patricia Cain on the relationship of the tax code and sexual orientation. Rickey takes her observations a step further, finding in the tensions between DOMA, which forbids recognizing same-sex marriages, and the IRC, "which uses marital status to identify parties likely to collude in order to minimize their collective tax burden," a new way to force the hand of anti-marriage supporters. They must either knowingly "allow a 'homosexual-only tax shelter'" or "recognize same-sex relationships for the purpose of tax law." Forcing the government to make this choice results from what the author calls a "gonzo" tax strategy, one that by insisting upon the strict application of the rules leads to their disruption, which can be contrasted with a "guerilla" strategy of collective disobedience of those rules.
Tenancy by the entirety -- recognized by about half the states -- provides for the "non-divisibility of interests in the property, unless agreed upon by both spouses, or after a decree of divorce, or the death of one of the spouses.... Neither an individual creditor of one of the spouses nor a unilateral transaction can sever the tenancy." This arrangement can be contrasted with other types such as "joint tenancy" -- which allows each tenant "the right to unilaterally sever the tenancy without the other's knowledge or consent" -- and "tenancy in common," which may be severed at any time by either cotenant and does not provide any survivorship rights [and is thus] useless for couples seeking to protect their property from outside creditors and individual conveyances, while also avoiding the probate process." While many writers are urging the elimination of tenancy by the entirety, the author argues that this form of shared ownership serves vital interests not only for married couples, but can be meaningfully expanded to include property protections for common law spouses, same-sex couples, and other "quasi-marital" relationships.
While some authors are skeptical about the obligation of states to recognize same-sex adoptions from other states (see, for example, the review by Rhonda Wasserman, "Are You Still My Mother?: Interstate Recognition of Adoptions by Gays and Lesbians," 58 Am. U. L. Rev. 1-83 (2008)), the Tenth Circuit finds in Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) just such a requirement in the Full Faith and Credit Clause.
The author argues that marriage (same-sex or otherwise) should be seen as a human right. He contrasts the external benefits of marriage (e.g., relational permanency, financial stability, child-rearing) with its internal benefits (the “connection to individual human dignity via the opportunity it provides its participants to achieve levels of human self-fulfillment”), stating that attainment of the latter should be the true goal of getting married. Despite this ideal, he notes that by limiting marriage rights to securing only its external benefits, as has occurred in recent U.S. same-sex marriage jurisprudence, human dignity is consequently demeaned.
The student author argues for the recognition of extraterritorial same-sex marriages by New York under the comity doctrine. Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) serves springboard for this commentary, wherein the New York Court of Appeals denied that the state constitution compelled recognition of same-sex marriages. Hernandez, which dealt with the question of issuing licenses of New York citizens, influenced later cases ruling on the question of recognition of marriages in foreign jurisdictions, such as Funderburke v. New York State Department of Civil Service, 822 N.Y.S.2d 393 (Nassau County Sup. Ct. 2006), Godfrey v. Spano, 836 N.Y.S.2d 813 (Westchester County Sup. Ct. 2007), and Martinez v. County of Monroe, 850 N.Y.S.2d 740 (App. Div. 4th Dep't Feb. 1, 2008), which disagreed over whether Hernandez had changed the law as concerned comity. This outcome is allowed, he says, because "the spirit of New York law safeguards citizens with respect to matters of sexual orientation, rendering the public policy arguments [for exemptions from comity obligations] untenable."
The present student work offers another in a growing line of well-intentioned, but ultimately misguided discourses on same-sex marriage. Schuman argues that, because religious believers oppose same-sex marriage, the best thing to do would be to separate "the institutions of civil and religious marriage such that religious groups can continue to grant or refuse to officiate marriage ceremonies based on their beliefs, and government can get out of the business of granting religious marriage and instead focus on granting equal rights to all of its citizens." The errors in this line of thinking are several, including the following. (1) marriage has always been a fundamentally social, not religious institution; religions have merely been favored as one vehicle for forming this legal bond. Consequently, if there is to be a parting of the ways, the term "marriage" should stay where it originally belonged, with secular authorities, and religions can form their own "civil unions" that trigger no legal or public consequences. Supporting this same outcome -- that government-sanctioned relationships should be "marriages," and religious celebrations merely "unions," is that the empirically observed social and psychological benefits follow from being "married," not from being "unioned," which is why these two states shall always represent unequal statuses regardless of whether they carry the same legal rights and benefits. To make religions the sole dispensers of this proven good would be to consign same-sex relationships to a permanent second-class standing.
More on: ReligionSeidman, Louis Michael, Gay Sex and Marriage, the Reciprocal Disadvantage Problem, and the Crisis in Liberal Constitutional Theory. 31 Harvard J. L. & Pub. Pol'y 135-150 (2008).
Writing from the perspective of the journal issue's theme of "Law and Morality," Seidman inquires into the over-the-top rhetoric of opponents of gays' rights, such as Justice Scalia, who think that "the case for gay rights is outside the range of reasonable constitutional argument." After demonstrating that a moral argument can be fielded for gay marriage, he returns to the question of why Scalia insists that such defenses are not simply wrong, but illegitimate. Generously taking him at his word that he is not motivated wholly out of pure animus, Seidman interestingly suggests that the dilemma lies in the problematic relationship between law and morality. If "it is true that constitutional questions are inextricably tied to moral questions [as liberal constitutionalism presumes], and if it is also true that moral questions cannot be resolved by reasoned argument [as the debate over gay marriage suggests], then it follows that constitutional questions cannot be so resolved either. But then it would be true that our polity is not founded on principles that all of our citizens are bound to respect and that the ambitions of liberal constitutionalism would have failed." This outcome, he notes, would be "a very big deal" for one such as Scalia, and at least offers an alternative explanation for his lashing out "at people who, he perceives, are attacking the very foundations of the Republic, not to mention his self-conception of how he performs his job."
The author, legal counsel for the Becket Fund for Religious Liberty, reads gains for gays regarding same-sex marriage as a threat to religious liberty. "Because of the undeniable centrality of marriage to civic and religious life, conflicts will inevitably arise where the legal definition of marriage differs dramatically from the religious definition." As his essay illustrates, however, the potential challenge to religious institutions does not concern governmental regulation of religious beliefs, but only areas of secular activity engaged in by religious institutions (e.g., employment, housing, and public accommodations). While no religion should be coerced into changing its private beliefs, neither is it obvious that any organization should be free to discriminate in the public sphere whatever its claimed motivation, especially when supported by governmental benefits such as tax exemptions. Severino offers no justification to support such a radical extension of religious protection.
Advances in assisted reproductive technology (ART) have begun to diminish the “genetic link in defining parentage.” Increasingly, legislatures and courts are recognizing the importance of “social parents,” who act as parents to children although possessing no genetic link. The author defines lesbian legal theory and then uses this critical method to examine the link, or lack thereof, between genetics and parenthood. Finally, she examines how ART and morphing social patterns are affecting the evolution of American family law.
The authors examine in detail three California Supreme Court decisions handed down in August 2005 affecting lesbian parental rights: Kristine H. v. Lisa R. [117 P.3d 690 (Cal. 2005)], Elisa B. v. Superior Court [117 P.3d 660 (Cal. 2005)], and K.M v. E.G [117 P.3d 673 (Cal. 2005)]. After discussing the decisions, the authors address questions of California law left open and the potential ramifications of the decisions for other states.
Written by a legislative attorney with the American Law Division of the Congressional Research Service, this report provides a comprehensive review of the current state of same-sex marriage laws in the U.S. Beginning with the federal Defense of Marriage Act (DOMA), the author explores potential constitutional challenges, specifically focusing on the Full Faith and Credit Clause, Equal Protection, and Due Process. The report then turns to the states, with a discussion of interstate recognition of same-sex marriage, and individual states’ responses to same-sex marriage. The discussion includes so-called mini-DOMAs, state constitutional amendments, and civil union laws. Ultimately, the author concludes that under Romer v. Colorado and Lawrence v. Texas, it is unclear whether statutes banning same-sex marriage would stand up to a constitutional challenge.
Written from the perspective of an associate professor of government and politics, as opposed to a legal scholar, this book presents the political theorists view of same-sex marriage in a democratic society by drawing on the works of John Locke, Immanuel Kant, and John Stuart Mill, among others. The author’s central argument is that democracy does not merely allow, but requires the legalization of same-sex marriage, even if the majority of Americans are opposed to it. She reasons that democracy is not merely majority rule, but rather democracy requires equality among citizens. Specifically, the author considers the legal principles of equality, separation of church and state, individual rights and liberties, and personal autonomy. Then, she responds to the opposition from what she calls three different strands of conservatism: religious conservatives, traditionalists, and conservative communitarians. Finally, the author responds to liberal academic critics of same-sex marriage.
Writing from her perspective as a practitioner specializing in the issues surrounding domestic violence in LGBT relationships, the author examines the topic from the state-specific viewpoint of New York. Finding that the lack of legal recognition of same-sex couples "hinders LGBT survivors from protecting themselves from domestic violence and its effects," and that whatever "fragmented relief" that is therefore available is "neither efficient nor effective" and is not without consequences for the victims, she advocates for more "holistic legislation" to redress the shortcomings.
Strasser ventures onto intellectual white water in this piece due to its controversial topic. Not that the reader would realize this from the seemingly innocuous title. His argument is first that those who would dismiss same-sex marriage by invoking the slippery slope to polygamy argument err by blurring distinguishable activities. Reasonable enough. Hackles will rise in the next sections which point out that, even so, "current plural marriage bans are not narrowly tailored enough to withstand the close scrutiny that should be given to statutes that target religious practices." In other words, while gay marriage does not lead to polygamy, the dispassionate reevaluation of the grounds on which both those practices are prohibited leads to the conclusion that "the Free Exercise Clause requires an exception be recognized for some same-sex marriages and for some plural marriages involving consenting adults." His thesis should be taken seriously by anyone interested in what the law actually requires, rather than merely the legal supports for the things they prefer.
This is a three-volume treatise with articles written by noted legal scholars. The first volume is titled “Separate but Equal No More: A Guide to the Legal Status of Same-Sex Marriage, Civil Unions, and Other Partnerships.” It includes articles on civil unions, domestic partnerships, the legalization of same-sex marriage in Massachusetts, corporate domestic partnership benefits, lessons learned from San Francisco, the federal Defense of Marriage Act, the federal Marriage Amendment, adoption, custody, and the rights of children.
The second volume is titled “Our Family Values: Same-Sex Marriage and Religion.” The volume includes articles on same-sex marriage and Hindus, Buddhists, Muslims, Lutherans, Presbyterians, Catholics, Unitarians, Pentecostals, Episcopalians, Methodists, Christians generally, Jews, sexuality and the black church, and historical reflections on religion and the freedom to marry in America.
"Rights talk," writes this author, are a double-edged sword. Those claiming rights (in this case, for same-sex couples to adopt) are often met those opponents also claiming rights (Catholic adoption agencies seeking an exemption from a requirement to consider same-sex couples). Such conflicts show the inherently rhetorical nature of the claim to rights, which constitutes Stychin's primary point. The idea of the right, from this perspective, one upon which much of gay activism depends, from this perspective becomes less of a trump than merely one device among many, a perhaps necessary but not sufficient claim in the public marketplace since it is so easily parried by countervailing claims framed in equivalent terms.
In this controversial theme-issue (see Legal Blog Watch, http://tinyurl.com/8crosl), the editors offer a handful of conservative anti-gay law professors a platform from which to declaim the reasons why gay men and lesbians are not entitled to full civil rights, including the right to marry. Bradley P. Jacob first argues that Griswold v. Conn., 381 U.S. 479 (1965), which properly protected "the right of a husband and wife to the privacy of their sexual relationship within the marital bedroom," had it been properly understood, "need not have been the disaster for traditional marriage, family and sexuality that its progeny have become and are becoming." Gary A. Debele offers a reasonable analysis of the constitutional dimension of custody decisions which should elevate "the interests of the child and any long-standing caregivers who have or will love and nurture the child, while at the same time maintaining a healthy, although not absolute, respect for the interests and rights of the biological parent." William C. Duncan's contribution, titled "Does the Family Have a Future," is concerned not with families, but only with husband-wife nuclear units whose sole purpose is biological procreation. Steven W. Fitschen serves up reasons why a federal constitutional amendment is needed to prevent gays from winning the right to marry at the state level. Richard G. Wilkins and John Nielsen point to the outcome in Lawrence v. Texas, 539 U. S. 558 (2003), to ask "Does America still have a written Constitution?" Finally, Lynn D. Wardle analogizes gay marriage to the Holocaust.
A surprisingly balanced presentation of the range of conservative arguments, not all of which will, of course, please gay readers. Jonathan Rauch begins by making a Burkean argument for incrementalism which balances a respect for tradition with acceptance of "gradual, bottom-up social evolution." For him, "the question is not whether same-sex marriage is a conservative policy, but whether it is being implemented in a conservative way." Jesse Choper and John Yoo (of torture memo fame) next argue that while under "existing judicial interpretation, neither the Due Process Clause nor Equal Protection Clause creates a federally-protected right of individuals of the same sex to marry when prohibited by state law," which they do not think states should do. Robert Nagel would unjustly reverse the burden of proof to show that same-sex couples are entitled to the public benefits of marriage. Rather than demanding the state to show why they should be excluded, he believes that "proponents of homosexual marriage must establish ... is that homosexual couples are as entitled as heterosexuals to the public recognition and respect that is an aspect of these legal entitlements." The best article in the series is that by Gerard Bradley. He identifies three liberal "mistakes" put forward in defense of same-sex marriage: that "the law of marriage does not rest upon a view of marriage as, in some basic or essential way, 'procreative'; that biological parents provide the optimal setting to raise children, and that "the law must recognize same-sex relationships as marriages because equal respect for the self-constituting choices of homosexuals and lesbians requires it." The quality of this argument comes not because because he is right -- indeed, each of his three arguments can be turned aside rather easily -- but from the lack of evident disdain for gay men and lesbians and the seriousness of his discussion. Both of these admirable qualities are missing in the piece by Charles Murray, best known for The Bell Curve. He states that because "marriage's role as an institution depends upon its function of perpetuating culture and civilization through the birth and nurturing of children," and therefore "gay marriage is an oxymoron." He is at least consistent in that for similar reasons he would deny marriage to sterile heterosexuals. David Frum wonders what the big deal is, since gay couples have not rushed to get married in those jurisdictions where it has become available. Dale Carpenter provides the final formal presentation, in which he points out that the Burkean conditions for social change are being met, and that, as gay and lesbian couples "are saying 'yes' to a traditionalizing institution...the question for conservatives at the end of the day is, why can't they take 'yes' for an answer?" The transcript of the symposium Q&A is fairly unremarkable, although it did allow one antigay spokesperson to show how unnuanced prejudice can be. When rhetorically asked, "But if the question is, 'Does somebody who has doubts about gay marriage, therefore become hostile to all efforts at being fair and receptive to the more particularized problems gay face?'", Teresa Stanton Collett pipes up, "Perhaps I might."
A transcript of proceedings moderated by Chai Feldblum, offers a casual conversation on "morality in the marriage equality debate and the question of its role in conceptualizing same-sex marriage." An obvious participant is Carlos Ball, who authored a book on precisely this topic. Fellow discussants include Suzanne Goldberg, Mark Chopko, Amy Wax, and Jonathan Rauch. All participants support basing social policy on the perceived morality of same-sex relationships, a position that, on its face, would delight conservatives firmly convinced that morality provides a clear, negative response to the question of same-sex marriages. The discussion would have benefited from a distinction between ethics and morality, for while it is fruitless (as Rawls argued) to try to base public policy on individual conceptions of the good, that does not mean that laws cannot be based on some recognition of duties owed to other citizens (e.g., the equality principle that Ball would avoid).
In her poignant introduction, Jennifer L. Levi recounts the kinds of tragedies that can befall same-sex couples when one partner becomes mental incapacitated, or dies. The need for the kind of wise legal counsel offered by these chapters is thus well established. A. Spencer Bergstedt provides a "first-of-its-kind practical guide," providing "key legal analysis for conducting estate planning for transgender clients." A similarly practical survey of the legal terrain, this time focusing on the special issues of aging same-sex couples, is offered by Aimee Bouchard and Kim Zadworny, both also, like Bergstedt, practicing attorneys rather than academics. The final contribution to this collection, from Patricia Crozier, offers some of the "nuts and bolts" fundamentals to be kept in mind by all LGBT families.
Tamayo provides a critical analysis of the New York Court of Appeals’ decision in Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006), which upheld the restriction of marriage in New York state to opposite-sex couples. She argues that the court’s decision is representative of a view of marriage as a static institution which is at odds with historical reality.
This short article presents a refutation of common arguments against the fitness of homosexuals as parents. The article argues against claims that children of homosexual parents will become homosexuals, that homosexual households produce troubled young adults, and that “dual-gender parenting” is superior to “homosexual parenting.”
More on: parentingTrimacco, Courtney, K.M. v. E.G., My Two Moms: California Courts Hold That a Child Can Have Two Natural Mothers. 38 U. Tol. L. Rev. 1065-1086 (2007).
In this analysis of the California case of K.M v. E.G. [117 P.3d 673 (Cal. 2005)] the author argues that state legislatures should more clearly define parenthood in light of recent advances in reproductive technologies. She asserts that parents using in vitro fertilization, surrogacy, ova donation or sperm donation should have statutorily defined rights.
Turner contrasts the two opposing opinions in National Pride at Work v. Governor of Michigan, 2005 WL 3048040 (Mich. Ct. App. Sept. 27, 2005); 732 N.W.2d 139 (Mich. Ct. App. 2007), both of which seek to construe whether the Michigan constitutional amendment prohibiting same-sex marriage also forbids public employers "from conferring employee benefits on the same-sex partners of their employees." The different outcomes, he suggests, are due to the fact that while the trial court is more consistent "with the language of the amendment itself, and also with the principles of constitutional interpretation that both courts claim to agree on," the appellate court imported understandings that marriage "precedes and exceeds the church and state," and is thus extra-legal. In such an environment, "law can describe marriage accurately or inaccurately, but law cannot change what marriage fundamentally is," an assertion that "is antithetical to the Anglo-American legal and political tradition." Even in the absence of overt claims of this kind, such ontological thinking is evidenced by the appellate decision's reliance upon entry criteria to marriage, even though the constitutional amendment speaks in terms of benefits.
Turner’s article begins with a discussion of Holtzman v. Knott[533 N.W.2d 419 (Wis. 1995)], the first United States decision to recognize a lesbian partner as the “de facto parent” of her partner’s biological child conceived and born during the relationship. After a summary of the case, Turner explores the sociopolitical factors leading to the Wisconsin decision and its varying reception in other states.
Wald explores the parentage issues affecting children conceived using assisted reproductive technologies (ART) and children resulting from extra-marital affairs. She analyzes how courts have traditionally determined who should be recognized as legal parents. The author argues that courts should entertain parenting, custody, and visitation actions brought by as many adults as have meaningfully contributed to a child’s parenting.
Coming from a law professor whose sole claim to fame rests on his vigorous and varied attacks on gays' rights, this particular article is remarkably restrained. The basic question he asks is whether U.S. ratification of the Hague Convention on Intercountry Adoption contains any hidden requirements to allow adoption by gay men and lesbians, something he would view as a regrettable outcome. His analysis suggests -- not least because at the time of the HCIA's writing (between 1988 and 1993), the social landscape concerning homosexuality was markedly different than it stands today -- the treaty contains no such stipulation, and in fact leaves much of the details about adoption to the local law of the countries involved. While this result is perhaps not as positive as gay couples would like, neither is it as negative as the author would prefer, a cause for some encouragement.
Wardle and Oliphant present a variety of arguments against analogizing prohibitions of same-sex marriage with the prohibition on interracial marriage struck down in Loving v. Virginia, an analogy which they argue devalues Loving. Among the arguments articulated are those based upon court decisions refusing to extend the principle of Loving to same-sex marriage and the authors’ assertion that the African-American community is opposed to same-sex marriage.
Are states required by the U.S. Constitution to recognize an adoption degree in another state regardless of the parents' sexual orientation. At least one state -- Oklahoma -- and one high-profile commentator -- Lynn Wardle -- say no, that, in the latter's words, "in many situations nonrecognition of lesbigay adoption decrees would be proper and permissible." Wasserman examines four different rationales to support such a conclusion, finding all to be flawed. Wardle's antigay posture, she argues, is contrary to "both Supreme Court precedent and an overriding policy favoring permanency in parent-child relationships."
This Note examines how the branch of law known in Europe as free movement law and in America as the right-to-travel doctrine copes with the problems created by the free movement of same-sex couples across internal borders.” The author explains that the European Union has required member states to protect the rights of migrating same-sex couples, while the United States has done exactly the opposite through the Defense of Marriage Act (DOMA). The author suggests that same-sex couples in America seeking to challenge DOMA on federalist grounds should look to the EU for inspiration.
This case note was written in the interim between the lower court ruling in Varnum v. Brien, No. CV5965 (Iowa Dist. Ct. Aug. 30, 2007), which upheld the right of six same-sex couples to be issued marriage licenses, and the decision by the Iowa Supreme Court upholding that outcome (763 N.W.2d 862 (Iowa 2009)). Wieland hoped that a decision using the rational-basis test -- the lowest level of scrutiny in equal protection analysis -- would "shift the debate away from the divisive issue of marriage back to human equality -- from 'Do homosexuals deserve the traditional privilege of marriage?' to 'How should we provide equal access to government benefits and protections to all people, including homosexuals?'" The Iowa court has in the past employed a "rational-basis-with-bite test," or a "bare animosity review," and the authors believes that this would be the more appropriate path in the present instance. History has overtaken his arguments, however, as the court chose to uphold the right to same-sex marriage by relying upon an intermediate level scrutiny which requires that "a statutory classification must be substantially related to an important governmental objective." This standard the state could not satisfy.
Executive review is the ability of the President to interpret and enforce the Constitution; whether this power allows the President to refuse to enforce federal statutes is a matter of current debate. Williams examines executive review at the state and local level. This exhaustive article describes how state constitutions fragment executive authority, and analyzes the ways state courts respond to claims of executive review. The article focuses this discussion on the actions of state and local officials who issued marriage licenses to same-sex couples.
Preservationism, as it is discussed in this article, is a term used to describe the evolving rhetoric of those opposed to same-sex marriage. The author argues that although the underpinning reasoning of those opposed to same-sex marriage is almost uniformly based in religious beliefs, the rhetoric has become more secular in an attempt to “couch…arguments in positive-sounding, seemingly un-bigoted terms.” Preservationism as an argument has been used to support the Defense of Marriage Act (DOMA), as well as the numerous “mini-DOMAs” around the nation and the Federal Marriage Amendment. The author applies the “Lemon Test” from Lemon v. Kurtzman to arrive at the conclusion that laws banning same-sex marriage violate the Establishment Clause of the First Amendment.
Denied the status of marriage, same-sex couples in virtually every state are left with no alternative other than piece-meal contractual arrangements to protect their rights and interests. The Illinois Supreme Court, in Hewitt v. Hewitt [394 N.E. 2d 1204 (Ill. 1979)], adds another barrier to equal rights for same-sex couples in the state of Illinois. The court, “in response to a claim for enforcement of an agreement between two unmarried persons of the opposite sex in a state which did not recognize common-law marriage,” held that public policy in the state of Illinois disfavored “private contractual alternatives to marriage.” The court reasoned that sexual relations could not be part of the consideration for offer and acceptance. Hewitt has not been challenged on same-sex contractual relationship grounds, but the author argues that such contractual relationships would not be legal under Hewitt.
The author considers the problem of ascertaining, from the particular view of Israeli law, parenthood of a child who was conceived by the egg of one lesbian partner being carried to term by the other. Because current law "cannot provide an adequate response," she proposes legislative changes that will allow recognition "through appearance before a registry official." Until such time, however, the Family Court will have jurisdiction over this question.
In K.M. v. E.G. [117 P.3d 673 (Cal. 2005)], the California Supreme Court held that a lesbian who had donated her eggs to her partner and had helped raise the resulting children had legal parentage claims. Zapotocny explores this and other cases involving same-sex unions and the custody of children. The article includes a discussion of California surrogacy law, and an exploration of legal doctrines which may protect same-sex parents.
In K.M. v. E.G. [117 P.3d673 (Cal. 2005)], the California Supreme Court held that a lesbian who had donated her eggs to her partner and had helped raise the resulting children had legal parentage claims. Zapotocny explores this and other cases involving same-sex unions and the custody of children. The article includes a discussion of California surrogacy law, and an exploration of legal doctrines which may protect same-sex parents.
Zaske describes the history and current content of U.S. immigration laws which impact homosexuals. Zaske goes on to discuss the Permanent Partners Immigration Act [H.R. 3006, 109th Cong. (2005)]. A comparative analysis of immigration laws from other countries is included in Zaske’s analysis of how PPIA may be implemented.
The California Supreme Court recently decided that the Uniform Parentage Act (UPA) encompassed the circumstances of a former lesbian couple who had conceived a child through alternative insemination. The unnamed author suggests that the court should have declined to extend the UPA as this would have alerted the legislature that the UPA needs reformation to address current family structures.