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Displaced Mothers, Absent and Unnatural Fathers: LGBT Transracial Adoption
While some might believe that Black versus gay discourse only surfaces in highly politicized settings like the military and marriage, it holds sway in the area of LGBT transracial adoption. LGBT transracial adoptions are a relatively small percentage of all adoptions, which include private adoptions, LGBT second-parent adoptions, and step-parent adoptions, but they are an important site for interrogating the Black versus gay discourse because adoption and custody decisions often address parent-child transmission. When claims intersect, as they do in a case where a White LGBT foster parent and a Black maternal grandmother dispute the adoption of a Black child, weakened race-based claims and LGBT transmission fears inform the court's decision. Disrupting the media staging of Black versus gay could provide courts better insight into how weakened race claims and LGBT transmission fears pull in opposite directions, and this would create the conditions for better, more innovative family decisions. If courts had a better understanding of the apparent competition between race and orientation, but also understood the costs attached to the media staging of the discourse, decision making in adoption and custody cases could be more comprehensive, taking into account the common interests in the children at issue. Understanding the costs that result from the media staging of Black versus gay discourse is key to finding common ground for identity groups and helping children of color already in LGBT homes. Black versus gay discourse is dangerous because of the structural costs that come with continued reliance on pernicious stereotypes of Black and gay. Looking at media and advocacy sources about LGBT transracial adoption, it appears as though rich, White gay men who adopt dangerous, damaged Black children may be the answer to racism, the superabundance of children in foster care, and poverty and criminality. This narrative looks like the gentrification of Black children by the gay community. This is dangerous because it imagines that Black is not gay and gay is not Black. It also displaces Black women as rightful, loving, and capable mothers and obscures the contributions of LGBTs of color and those with lower incomes, many of whom are mothers and fathers.Limiting the Affirmative Defense in the Digital Workplace
From 2009 to 2011, there were more than 30,000 sexual harassment claims filed in the United States. The ubiquitous availability of digital technology devices has facilitated many instances of sexual harassment. Such sexual harassment occurs through unprovoked and offensive e-mails, messages posted on electronic bulletin boards, and other means available on the Internet. To date, courts remain silent on this issue. Should this type of sexual harassment be treated differently from physical sexual harassment? The surprising answer is yes. This Article suggests a new judicial framework for addressing sexual harassment perpetrated through digital communications. This framework accounts for the real-world technology in place in the digital workplace and the legal framework that courts have constructed in connection with affirmative defense to sexual harassment. The fundamental difference between digital and physical sexual harassment is the employer's ability to monitor and block offensive digital communications and thus prevent digital sexual harassment. This possibility of prevention is the underlying reason for treating the two forms of harassment differently and for modifying the existing affirmative defense. This Article proposes that when an employer fails to use available technology to prevent known digital sexual harassment issues, the affirmative defense should be modified or unavailable. Adopting this approach would compel employers to use monitoring and blocking technology as a way to eliminate digital sexual harassment in the workplace.Against the New Maternalism
Parenting is a major preoccupation in law and culture. As a result of efforts of the American women's movement over the past forty years, the legal parent is, for the first time in history, sex-neutral. Our law has abandoned restrictions on women's education, employment, and civic participation that sprang from and reinforced beliefs about the primacy of motherhood as women's best destiny. On the flip side, U.S. law now also generally rejects formal constraints on men's family roles by requiring sex-neutrality of laws regulating custody, adoption, alimony, spousal benefits, and the like. The official de-linking of presumptive parenting roles from a parent's sex is constitutionally enshrined in modern equal protection doctrine, statutory law, and common law. That sex-neutrality is hard won and valuable. It is also, however, woefully incomplete as a form of social change.Abortion and Informed Consent: How Biased Counseling Laws Mandate Violations of Medical Ethics
If we slightly change the facts of the story about the discouraging doctor, it becomes a story that happens every day. Abortion patients face attempts to discourage them from terminating their pregnancies like those the imaginary doctor used, as well as others-and state laws mandate these attempts. While the law of every state requires health care professionals to secure the informed consent of the patient before any medical intervention, over half of the states place additional requirements on legally effective informed consent for abortion. These laws sometimes include features that have ethical problems, such as giving patients deceptive information. Unique informed consent requirements for abortion are depicted by their supporters as necessary for fully informed and voluntary consent to abortion. They are purported to protect health by regulating the practice of medicine. But their worst features are detrimental both to the goals of the doctrine of informed consent and to women's health. I refer to these laws as "biased counseling laws" because they are not intended to ensure that patients give their informed consent to abortion, but rather are intended to make women less likely to terminate their pregnancy. I employ a broad definition of biased counseling laws; for my purposes, any law that is intended to discourage women from deciding to obtain abortions is a biased counseling law. However, not all abortion- specific consent laws are equally ethically problematic. Thus, my argument will focus on certain features of biased counseling laws. This Article contributes to the literature by examining in detail the most problematic features of biased counseling laws, collecting and explaining some of the most influential ethical accounts of informed consent, and demonstrating the deep ethical problems with biased counseling laws. Legal scholars have previously argued that biased counseling laws are unconstitutional because they impose an undue burden on the right to terminate a pregnancy, they violate the First Amendment, and they constitute sex discrimination. This Article shows that, in addition to their shortcomings when judged by the standards of the Constitution, biased counseling laws have serious problems when judged by the standards of medical ethics. The Article provides an innovative, interdisciplinary analysis of statutory provisions in an area in which legislatures have been highly active in recent years and will likely continue to be.Pain, Love, and Voice: The Role of Domestic Violence Victims in Sentencing
Criminal law systems throughout the world have evolved to a stage where they no longer ask, "What is the appropriate role of the victim in a criminal trial?" The questions now relate to the scope of the victim's rights, in which procedures she has independent standing, and at what stage she should be heard. The process of the "prosecution stepping into the victim's shoes," whereby the state controls the entire criminal process, seemingly on behalf of the victim, has been replaced by the recognition that the interests of the prosecution (the State) are not always consistent with those of the victim. The view that will be developed here as the main thesis of this Article, that victims should be heard at the sentencing stage, irrespective of their views, is far from common. This Article will first establish the theoretical basis for this view by drawing on an expressive theory, discussed in Part I, and will take this theory a step further, into the sphere of the particular victim who asks for leniency.No Contact Parole Restrictions: Unconstitutional and Counterproductive
Although what Jesse Timmendequas did was abhorrent, the legislation enacted in the wake of his crime went far beyond making sure we know the pedophiles or pedophile-murderers living in our neighborhoods. Megan's name now lends itself to a host of state laws requiring the state to notify neighbors when a sex offender moves into the neighborhood. The term "sex offender" is intentionally broad, covering everyone from voyeurs and exhibitionists to rapists and child molesters. Yet, Megan's Laws treat them the same way, ignoring some crucial questions: Are all sex offenders alike? Are they all monsters? In reality, the majority of sex crimes are not the sort of violent rapes that are highlighted in news stories. Furthermore, the categorical treatment of sex offenders-despite significant differences in their crimes-has led to impulsive and overreaching new restrictions once they are paroled. States continue to look for new ways to control this population once they are released from prison. The most alarming of these new techniques are "no contact" restrictions, which prevent paroled sex offenders from having any interaction with persons under the age of seventeen, including their own children. These "no contact" conditions represent a drastic new step towards more restrictive parole that cannot be justified on public safety grounds. "No contact" parole restrictions test the constitutional limits of society's willingness to continue punishing sex offenders long after their release from confinement. The problem of states moving towards more restrictive conditions is a problem of categorical over-inclusion. Highly restrictive parole conditions may be necessary for some offenders (certainly for the Jesse Timmendequas of the world), but they are not necessary for all. This Article aims to expand current sex offender scholarship, focusing on the new "no contact" restrictions and the way in which the application of such restrictions to all sex offenders without individual review is not only unconstitutional, but also poor public policy.The Devil Comes to Kansas: A Story of Free Love, Sexual Privacy, and the Law
On Sunday, September 19, 1886, Moses Harman, the editor of the radical newspaper Lucifer the Light-Bearer, presided over an inherently contradictory event-a free-love marriage ceremony between his associate editor, the thirty-seven-year-old Edwin Walker, and Moses' own daughter, the sixteen-year-old Lillian. The case that the two Harmans and Walker wished to present aimed to transform marriage from a public to a private relationship and from a permanent and exclusive one to a temporary one that permitted potentially many partners. State v. Walker and its parties have received some scholarly notice, but the truly radical quality of the arguments Moses, Edwin, and Lillian presented has yet to be fully appreciated. This Article's principal purpose is to present and analyze these arguments and the judicial response to them, thereby shedding light on contemporary debates over whether the state should withdraw from the marriage arena. Scholars from various perspectives have come to maintain that the state's leading role in defining marriage should yield to private contractual ordering. In a pluralistic era where groups within society disagree fundamentally over the essential attributes of marriage, it is argued that the time has come to abandon narrow, one-size-fits-all public definitions of marriage in favor of a rich tapestry of differing personal perspectives and points of view.Confrontation and Domestic Violence Post-Davis: Is There and Should There Be a Doctrinal Exception
Close to five million intimate partner rapes and physical assaults are perpetrated against women in the United States annually. Domestic violence accounts for twenty percent of all non-fatal crime experienced by women in this county. Despite these statistics, many have argued that in the past six years the Supreme Court has "put a target on [the] back" of the domestic violence victim, has "significantly eroded offender accountability in domestic violence prosecutions," and has directly instigated a substantial decline in domestic violence prosecutions. The asserted cause is the Court's complete and groundbreaking re-conceptualization of the Sixth Amendment right of a criminal defendant to confront his accusers, beginning with the historic decision Crawford v. Washington in 2004, through Davis v. Washington two years later, and then Giles v. California two years after that. This Article will evaluate the Sixth Amendment right of confrontation in the context of domestic violence cases, both to assess certain consequences of this major constitutional shift and to suggest a change to confrontation doctrine in order to address some of the negative consequences that have apparently resulted. This Article engages in this consideration by way of an assessment of all state domestic violence cases that have examined the Confrontation Clause after Davis v. Washington.Parenting and Pregnant Students: An Evaluation of the Implementation of the Other Title IX
Title IX of the Education Amendments of 1972 prohibits gender discrimination. Although pregnancy has been described as the "quintessential sex difference," Title IX's prohibition of gender discrimination in the context of parenting and pregnant students has often been left out of the discussion, and therefore the understanding, of the implementation of Title IX Regulations. The scholarship discussing the topic shows general agreement that the language and spirit of Title IX has not been given effect thus far by our schools or by some courts. This Article begins by looking to the Title IX regulations themselves and then to the research indicating that this aspect of Title IX has yet to be fulfilled. With that understanding, it turns to the litigation landscape to identify trends in the case law, including strengths, weaknesses, and gaps. Next, this Article looks to societal impacts, specifically lack of awareness, discourses and legal mobilization, in order to garner an understanding of why the Title IX Regulations for pregnant and parenting teens have not been more strongly implemented in schools or litigated in courts.When Sixteen ain’t So Sweet: Rethinking the Regulation of Adolescent Sexuality
Legally speaking, sexual maturity poses a significant enough liberty interest for a minor to make medical decisions regarding contraceptive medicine or to choose motherhood without parental involvement, but not quite enough for her to obtain an abortion independently. The law incentivizes teenage motherhood by only granting decisional autonomy to those minors who choose to have a child; the minor female's right to procreate vests regardless of her individual maturity. The law discourages teenage abortions by using the choice to terminate a pregnancy to trigger a presumption of immaturity; the minor female's abortion right is pitted against personal autonomy via parental rights. Ultimately, this Article argues that sexually active minors, their children, and their parents all suffer in this reproductive catch-22. This Article contends that the conflict between age of consent laws and minor abortion restrictions is just one illustration of state legislatures' struggles within the greater protecnionist-versus-enablement paradigm. Specifically, this Article argues that laws regulating adolescent sexuality can generally be categorized into one of two types: (1) protectionist, enacting restrictions and protections designed to compensate for minors' categorical immaturity; or (2) enabling, recognizing adult-like capacity and rights in minors as they progress in their overall development. The result of this polarized statutory landscape can only adequately be described as "legislative schizophrenia"-although devoid of invidious intent, these statutes ultimately hurt minors because they are premised on a flawed paradigm that is unable to coordinate the different political and social goals of state legislatures. This Article argues that by recognizing consensual maturity for intercourse and pregnancy but then rescinding that presumptive maturity only for abortion, states both violate the Constitution and create dangerous public policy. Specifically, states violate legally-consenting minors' substantive due process rights by imposing undue burdens on their abortion access without any legitimate, countervailing immaturity interest. While parental notification and consent laws have been upheld on the grounds of minor immaturity, this Article argues that the recognition of sexual maturity through age of consent laws should also trigger a presumption of maturity for minor abortion rights. This Article further highlights five key policy concerns created by the inconsistent regulation of adolescent sexuality: (1) the encouragement of impulsive adolescent sexual behaviors; (2) the binding of decisional autonomy to pregnancy outcome; (3) the reinforcement of paternalistic gender stereotypes; (4) the punitive, rather than protective, natre of parental involvement and judicial bypass; and (5) the continued hystericization of adolescent sexuality.