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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.Giving in to Baby Markets: Regulation Without Prohibition
The commodification of reproductive material evokes different responses. Some argue that the sale of reproductive material should be prohibited. Others argue in favor of unfettered baby markets on principle or to achieve broad-scale access to reproductive technologies. In this Article, the author responds to the emergence of baby markets with great skepticism, but reluctant acceptance. Drawing on a relational conception of autonomy and self-definition, she argues that commodification of reproductive material is intrinsically harmful. Moreover, such commodification poses a number of consequential harms. Nevertheless, in spite of these concerns, the author "gives in" to baby markets, which is to say she does not argue for the prohibition of these markets, but instead for their regulation and oversight. The author gives in to baby markets in part because of the great impracticality of prohibiting markets given how well entrenched they are; people have been buying and selling reproductive material for some time. In addition, although there are risks of markets, the risk-benefit calculus calls for allowing markets to exist, provided there is careful and serious regulation of such markets. In other words, the author is not willing to accept completely free and unfettered markets.Of Sexual Bondage: The ‘Legitimate Penological Interest’ in Restricting Sexual Expression in Women’s Prisons
Despite its prevalence, sexual expression among inmates is currently prohibited in United States prisons. Recent scholarship, however, has advocated allowing certain types of sexual expression in women's prisons. The advocates of such a position differentiate between different types of sex within the correctional system: sexual expression that the system has no interest in prohibiting and should not bar, and sex acts that the system does have an interest in prohibiting and should continue to regulate. This position is based on the dual assumptions that, first, women in prison as a collective unit would benefit from some types of sexual expression, and second, that the government has a legitimate interest in prohibiting others. This paper will examine both assumptions with the intent to determine what intersection exists between these interests. Recognizing that much of the research in this area has focused on male prisoners, rape, and/or staff abuse, this paper will primarily examine women prisoners engaged in consensual sex with other female inmates. Overall, it will reject the argument that any type of sex should be officially permitted within prison, due to the destructive nature of both prison relationships and the prison itself and to the impossibility of consent to any prison relationship.Student Gladiators and Sexual Assault: A New Analysis of Liability for Injuries Inflicted by College Athletes
This Article will focus on an issue that was probably not on the minds of 19th century educators, nor primarily on the minds of the legions of present-day academic critics of intercollegiate sports. Namely, this Article explores the ways in which big-time athletics- particularly football-normalize and encourage harms to women, including educational and sexual harms. The author’s theses depend upon acknowledging certain open secrets about college football: that it is a celebration of male physical supremacy (measured by male standards); that it is something that society lets males do and have as their sport, for reasons both good and bad; that football worship by both men and women is weirdly and widely accepted in spite of the huge costs of football; and that football has a darkly gendered underside that deserves serious consideration.Pursuing the Perfect Mother: Why America’s Criminalization of Maternal Substance Abuse is Not the Answer- A Compartive Legal Analysis
In this Article the author will examine not only the substantive legal differences between the United States, Canada, and France, but will also explore how these legal rules fit within a broader social, political, and religious setting. This Article will pursue four lines of inquiry. First, it will briefly chronicle the history of criminal prosecution of pregnant women in America and show how these prosecutions have become markedly more aggressive over the last twenty years. Second, it will situate these prosecutions in the full context of American law and culture, demonstrating how the fetus has received increasing legal recognition in a wide variety of circumstances. The author will argue here that "fetal protection" prosecutions are part of a broader attack on women's rights, including the right to reproductive freedom as well as the right to control their economic and private lives generally. The Article will examine how American laws focus on the fetus as the sole "person" at risk, rather than on the maternal-fetal dyad, skews the legal and political arguments that take place. It will contrast the emphasis on the fetus with the failure of American government to provide adequate health care for women and children. Third, it will examine the laws of two other nations, Canada and France, for purposes of comparative legal, cultural, and economic analysis, and will offer some informed speculation about the reasons why the American obsession with "fetal protection" is not matched by other nations. Here the Article will address four factors: 1) America's frequent reliance on constitutional litigation as a means of achieving law change; 2) America's federal system of government, which provides the opportunity for different legal rules to operate concurrently within the same nation; 3) the United States' unique prosecution system, which involves government attorneys who are chosen locally by the electorate, as opposed to the Canadian and French systems in which prosecutors are appointed through a centralized national process; and 4) and the lack of a system of universal health care and other government-funded social and economic supports. The Author will conclude with recommendations for reforming American law to embrace the unity of interests of pregnant women and their fetuses and promote the health of both, by providing treatment, not punishment, for addicted women.Untold Stories: Gender-Related Persecution and Asylum in South Africa
This Article explains the particular difficulties that female asylum seekers and survivors of gender-related persecution face, reaffirming the need for the practical and sensitive application of international and domestic gender guidelines. Extensive research into client files and interviews with key decision makers prove that, despite scholarship suggesting that women may be advantaged in asylum proceedings, a focus on gender is still needed in the South African context. While there are undoubtedly problematic elements of the 1998 Refugees Act warranting its revision, the addition of gender as an additional category under the refugee definition, as proposed by the recent Refugees Amendment Bill, is not a solution to the hardships faced by female asylum seekers and survivors of gender-related persecution navigating the South African system.