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Rethinking Consent in a Big Love Way
This Article is based on a presentation at the Michigan Journal of Gender and Law as part of their symposium "Rhetoric & Relevance: An Investigation into the Present & Future of Feminist Legal Theory." In it, I explore the problem of categorical exclusions to the consent doctrine in private intimate relationships through the lens of the HBO series Big Love, which is about modern polygamy. There remains the normative question both after Lawrence v. Texas and in feminist legal theory of under what circumstances individuals should be able to consent to activity that takes place within the context of a private, intimate relationship. The tensions between individual autonomy and state interests are beautifully explored in Big Love. Drawing on themes presented in the series, this Article asks if there is any principled way to make the distinction between those relationships in which there is some physical or psychological harm inflicted and those in which the state has proscribed a relationship because of some moral or social harm it allegedly causes. Four case studies are presented to prompt readers to try to answer the question of when consent should be a defense to otherwise proscribed activity. I conclude that the future of feminist legal theory depends on its ability to remain ambivalent about the tensions presented in the consent doctrine as applied to contexts such as polygamy, prostitution, sadomasochistic sex, obscenity, and domestic violence. Big Love seeks to persuade us to accept ambivalence and to be open to changing our minds because of the complicated nature of women's (and men's) lives; feminist legal theory ought to persuade us to do the same.Contingent Equal Protection: Reaching for Equality After Ricci and Pics
This Article uses the term contingent equal protection to describe the constitutional analysis that applies to a range of governmental efforts to ameliorate race and sex hierarchies. "Contingent" refers to the fact that the equal protection analysis is contingent upon the existence of structural, de facto inequality. Contingent equal protection cases include those that involve explicit race and sex classifications, facially neutral efforts to reduce inequality, and accommodation of sex differences to promote equality. Uniting all three kinds of cases under a single conceptual umbrella reveals the implications that developments in one area can have for the other two.Defining Sex: On Marriage, Family, and Good Public Policy
Transgendered individuals and their families face legal risks that most families do not, at least in part, because state laws are often unclear about whether or under what conditions transgendered individuals are permitted to marry the individuals whom they love. Challenges to the validity of marriages involving the transgendered may arise under a variety of circumstances, ranging from cases in which individuals may have hidden or may not even have known that they were transgendered until after their marriages, to cases in which the individuals had already transitioned and had explained their personal histories to their partners before they were married. Where such marriages are contested, a number of issues may have to be resolved including the validity of the marriage, parental status, and who should have custody of or visitation with any of the children raised by the parties. This Article focuses on the spousal and parent-child relationships of transgendered individuals. Regrettably, much of the law is still unclear. While most states specifyr the conditions under which a transgendered individual can have his or her birth certificate modified to reflect his or her self-identified sex, states have been much less clear about how local marriage laws apply to transgendered individuals. In many states, there is no express policy with respect to whether a transgendered person will only be permitted to marry someone of the opposite sex of his or her self-identified sex or, instead, someone of the opposite sex of his or her birth sex. Current law in most states is intolerable, either because it fails to take into account the actual lives of the transgendered, or because it is simply indeterminate.Beyond the Binary: What Can Feminists Learn from Intersex Transgender Jurisprudence
Our panel will be discussing recent developments in the intersex and transsexual communities. The transsexual community began to organize in the 1970s, but did not fully develop into a vibrant movement until the 1990s. The intersex movement was born in the mid-1990s and has rapidly developed a strong and influential voice. Recently, both movements have undergone profound changes and each has provided new and unique theoretical perspectives that can potentially benefit other social justice groups. The purpose of our dialogue today is to describe these developments and explore how feminists could potentially benefit from the theoretical frameworks that are being advanced by the intersex and transsexual communities.Left Out in the Cold: Trafficking Victims, Gender, and Misinterpretation of the Refugee Convention’s “Nexus” Requirement
Victims of human trafficking who seek international protection in their country of destination face a steep uphill battle. Special visa programs designed to regularize their status are often riddled with conditions that make them inaccessible to all but a very few victims. Despite widespread international agreement that the manifold harms inflicted upon the majority of trafficked persons generally rise to the level of persecution, and therefore that victims should be eligible to apply for asylum, many national courts misinterpret international refugee law standards and routinely deny refugee status to deserving applicants. Courts often refuse to recognize persecution on the basis of gender, whereas the vast majority of trafficking victims are targeted because they are female. The result is that many trafficking victims who substantively meet the requirements for refugee status, and are therefore deserving of international protection in the form of asylum, instead find themselves prosecuted and deported. Adjudicators justify their denials on the ground that trafficking victims fail to meet the so-called "nexus" requirement, which obliges an asylum seeker to establish that her persecution was for reasons of her civil or political status-a requirement that becomes difficult to establish in the context of trafficking.Taxing Civil Rights Gains
This Article is divided into four parts. In Part I, the nature of the levy that the DOMAs impose on same-sex couples is explained. In Part II, how this levy can be classified as a "tax" is explained. In Part III, the federal- and state-level ramifications of classifying the levy that the DOMAs impose as a "tax" are discussed. Finally, brief concluding remarks are provided that discuss how this Article might pave the way for making similar arguments with respect to other nontraditional families and, concomitantly, how it demonstrates the transformative potential of same-sex marriage.Passions We Like… and Those We Don’t: Anti-Gay Hate Crime Laws and the Discursive Construction of Sex, Gender, and the Body
This Article proceeds as follows. In Part II, the author catalogs the history of anti-gay hate crime laws in the United States, describing the rapid spread of state-level laws extending race- and religion-based hate crime laws to LGB people. The Article also provides an overview of federal legislation addressing anti-gay hate crime. In Part III, it examines the policy environment within which anti-gay hate crime laws have been, and continue to be, considered. Specifically, the jurisprudential frameworks that shape, define, and constrain discourses of equality, rights, and social identity are analyzed. The argument is made that the policy environment of antigay hate crime law has created a set of intractable discursive problems for advocates of anti-gay hate crime laws. Such laws' emphasis upon status categories in defining the harm, and the causation scheme implicated by hate crime tracking mechanisms and sentence enhancements, serves to undermine LGB discourses of equality and sexual freedom, and reinscribes binary conceptions of sex, gender, and embodied desire. In Part IV, the justificatory discourses embedded within the drive to enact and extend anti-gay hate crime laws are unpacked. The author demonstrates that utilitarian, expressivist, and retributivist discourses circulate in troubling ways throughout the anti-gay hate crime debate. Such justificatory narratives betray a fundamental ambivalence about the nature of sexuality, identity, and desire and, as a result, open the door to juridical investigations into, and evaluations of, different manifestations of passion. The author argues in Part V that sexual progressives ought to be suspicious of such investigations in part because they create the discursive space within which anti-gay discourses- such as that which authorizes the so-called "homosexual panic defense"-flourish. The Article is concluded in Part VI by considering the implications of the analysis of anti-gay hate crime laws for LGB advocacy generally.The Gay Agenda
This Article is designed to illuminate options that the author believes have been difficult for advocates of gay rights to imagine due to an incessant culture war and the hard work of anti-gay forces that have kept pro-gay advocates under persistent fire. The culture war, this paper argues, while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run.Vindicating the Matriarch: A Fair Housing Act Challenge to Federal No-Fault Evictions from Public Housing
Pearlie Rucker, sixty-three years old, had been living in public housing in Oakland, California for thirteen years. Ms. Rucker lived with her mentally disabled adult daughter, Gelinda, as well as two grandchildren and one great-grandchild. Ms. Rucker regularly searched Gelinda's room for signs of drugs, and had warned Gelinda that any drug activity on the premises could result in eviction. Nevertheless, Gelinda was caught with drugs three blocks from the apartment. Despite the fact that Ms. Rucker had no knowledge of Gelinda's drug activity, and in fact had been carefully monitoring what happened in her apartment, the Oakland Housing Authority (OHA) took steps to evict Ms. Rucker. Ms. Rucker and others brought suit in Federal District Court to challenge the actions of the OHA and the Department of Housing and Urban Development (HUD). Eventually, the Supreme Court of the United States, in the 2002 case Department of Housing and Urban Development v. Rucker, held that the Anti-Drug Abuse Act of 1988 requires lease terms that give public housing authorities (PHAs) the discretion to evict tenants for the drug-related activity of any household members and guests. The Court held that PHAs have the power to evict regardless of whether a tenant knew or should have known about the drug-related activity. This one-strike policy has been widely criticized as unfair to public housing leaseholders, since it has the potential to devastate them, even if they have not engaged in any drug activity, and even if they had no knowledge of the drug activity of household members and guests. The Rucker decision has also prompted significant discussion among lawyers and academics about ways to alter or challenge the policy to ensure that tenants are not treated in an unfair and draconian way. Given the statistics and social science research indicating that low and very low income households are often female-headed, it is very likely that the Rucker decision weighs most heavily on poor and minority women. These women probably constitute a large majority of the leaseholders who find themselves evicted from public housing under its rule. If the statistics prove this to be true, it may be possible to invalidate the applicable portion of the Anti-Drug Abuse Act, along with the HUD regulations that enforce it, based on sex discrimination under the Fair Housing Act (FHA). Alternatively, for PHAs that evict a disproportionate number of female leaseholders, FHA lawsuits could force those authorities to be fairer and more measured in their application of the policy.Men and Women of the Bar: The Impact of Gender on Legal Careers
In the last three and a half decades, the legal profession has undergone a dramatic transformation in the gender composition of its members. During that time, the number of women applying to law school and entering the profession has gone from a few gallant pioneers to roughly equal representation with that of men. Between 1970 and 2000, the proportion of first-year law students who were female climbed from 8% to 49%. Because the existing bar consisted primarily of male lawyers, the percent of women in the legal profession changed more slowly, but still rose dramatically. Women, as a percent of all practicing lawyers, have risen from 3% in 1970 to 27% in 2000, while the percent of lawyers who are men has made a corresponding decline. In just the thirty years from 1970 to 2000, the number of women in the legal profession increased from fewer than 10,000, to almost 300,000, marking a steady growth rate of 12% a year. Over the same period, the number of male lawyers has increased from approximately 290,000 to 780,000, for an annual growth rate of just 3.3% per year.