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The Marriage Mirage: The Personal and Social Indentity Implications of Same-Gendered Matrimony
This Article will examine why so much is at stake in the political, social, and legal debate over same-gender marriage. It will not address the constitutional questions of whether there is a fundamental right to marry, although persuasive arguments have been advanced from both sides of the debate." This Article will focus on a more introspective view of the potential effects of legalizing same-gender marriage on the identities of gay men and lesbians in committed relationships and on the interaction between same-gender couples and society. Marriage would provide the integration sought by gay men and lesbians, but at the expense of significant social quandary. In Part I, this paper will dissect the meaning of marriage into its relational, traditional, and Christian aspects." Part II will explore the legal and constitutive qualities of same-gender marriage. Part III will discuss the impact of the law of marriage in its present form on the identities of gay men and lesbians, as they see themselves and as society views them. Part IV will look at how legalization of same-gender marriages might change the self-perception of gay couples, what legal benefits it would confer, and how the heterosexual majority might respond. This Article will conclude that the legalization of same-gender marriage is too big of a step and will suggest, instead, enactment of smaller benefits packages to mitigate economic and legal discrimination against same-gender couples, while society prepares for same-gender "marriage."What Will Diversity on the Bench Mean for Justice?
This article is aimed at the general question: whether having a woman judge would make a difference in sexual harassment cases. This article is aimed at this general question, the response to which has been elusive: Does the race, gender, or other background characteristics of a judge make a difference in the outcome of cases? The effects of diversity on the bench are just becoming measurable. Many legal scholars have assumed diversity will make a difference. While this conclusion may seem commonsensical, it is important to be able to support such assertions with actual data. The supposition has been that diversity on the bench will take into account differing viewpoints that exist in a multi-cultural society like our own, thereby making justice more fair or, at least, giving it the appearance of being fair. Driven in part by principles of legal realism, this theory has found support through the voices of both legal academics and social scientists. This position, however, is not without its detractors and skeptics It also begs some fundamental questions: Will diversity on the bench really have an effect on the outcome of cases and in the manner in which justice is administered?The Triumph of Hate Speech Regulation: Why Gender Wins but Race Loses in America
On March 30, 1995, newspaper headlines declared that hate speech regulations were dead. After six years of litigating over university hate speech codes, Stanford University's rule, one of the most modest and cautiously drafted, had been declared unconstitutional by a California Superior Court. Hate speech regulation is far from over. To the contrary, hate speech rules not only continue to exist, but the courts regularly enforce their provisions. The difference is that these cases are largely restricted to a single category-sexual harassment. Under Title VII of the Civil Rights Act of 1964, and with the regulatory support of the Equal Employment Opportunity Commission (EEOC), U.S. courts are willing to penalize those who verbally harass others on the basis of their sex. That the courts appear to have conflicting approaches to different classes of hate speech begs the question of why this disparity exists. Why is it that courts bristle at university hate speech codes but allow other cases to go forward protecting women from harassing speech? A logical first step would be to address the various court opinions on the subject, and to be sure many a judge has tried to justify the distinction between hate speech codes and sexual harassment law based on the different environments in which they each arise. This distinction has also caught the attention of several legal scholars, most of whom accept the notion that sexual harassment law can be distinguished from hate speech policies. As a group, they either agree with the courts that the rules of the workplace (sexual harassment) are inapplicable to the classroom (hate speech), or they argue that sexual harassment law should be limited to conduct and that any sort of verbal harassment, no matter its basis or target, violates the First Amendment to the U.S. Constitution. This Article challenges those assumptions, arguing that we need to rethink the courts' treatment of sexual harassment law and hate speech codes. Contrary to many commentators, I reject the notion that sexual harassment law is easily distinguished from hate speech codes or that the courts have done an adequate job of explaining their divergent decisions. If anything, the courts have been unusually silent on the question, and those that have considered the issue often leave us with conflicting opinions. Indeed, this riddle is what makes the judicial treatment of hate speech so interesting. Because the courts have been unclear in their justifications, we need to work harder to uncover their true motivations and explanations. This Article tries to do just that, eventually concluding that social and political theories do more to explain the courts' behavior than do jurisprudential answers. One of the Article's majors conclusions is that the courts' different treatment of sexual harassment and hate speech stems from their divergent views of gender and racial protection, and ultimately in the American public's conflicting attitudes towards women's and minorities' rights.Consensual Relationships and the Constitution: A Case of Liberty Denied
On many university and college campuses, there exists an anti-civil-libertarian spirit reminiscent of the McCarthy period. During the 1940s and early 1950s, regents, trustees, academic administrations, and the American Association of University Professors (AAUP), although each for a different reason, persuaded the Academy to repress personal liberty. It is difficult to pinpoint precisely when constitutionally and statutorily protected liberties and rights became secondary to insulating educational institutions from damage suits in their pursuit of a selective social and political agenda.Assesing the Family and Medical Leave Act in Terms of Gender Equality, Work/Family Balance, and the Needs of Children
While recognizing that parental leave is only one aspect of the FMLA, this Article concentrates on the provision allowing leave to parents in order to care for their children. Before analyzing the FMLA in detail, it is helpful to explore what aims a parental-leave policy should have. The purpose of this Article is to propose and defend three goals that parental-leave legislation should strive to meet: equality of career opportunities for men and women, the right to participate in both work and family, and meeting the needs of children. After articulating what parental-leave legislation should aim for in theory, this Article examines the FMLA's success in meeting these aims.“O Wind, Remind Him That I Have No Child”: Infertility and Feminist Jurisprudence
Feminists have constructed a "grand theory" of infertility and new reproductive techniques that has little to do with reality. Much of the discussion of reproductive technology is written in highly abstract, philosophical terms, rather than in the more experiential, narrative style which characterizes much of feminist jurisprudence. The infertile woman is generally voiceless and invisible in the telling of this story; when she does appear she is dismissed or criticized. This Article is an attempt to begin dialogue which incorporates her perspective into the discussion.Affirmative Action Statements
The student editors of the Michigan Journal of Gender & Law adopted a brief statement for release with other student statements and voted to publish a statement in the Journal. This is their statement in response to the anti-affirmative action lawsuits. Several other Law School student organizations have also provided their statements to publish.Reproductive Liberty Under the Threat of Care: Deputizing Private Agents and Deconstructing State Action
This Article uncovers the unsettling parallels between feminism and the recent restrictions on reproductive liberty in order to reveal the threat posed by the feminist ethic of care. By critically reexamining feminism's foundation and direction, the need for greater emphasis on female individuality becomes apparent. Kelly’s contention is that such a perspective, aggressively supported by the state, will ensure feminism's progress and encourage the achievement of gender equality.A Feminist Approach to Social Scientific Evidence: Foundations
This Article addresses several aspects of a feminist approach to social scientific evidence, specifically, the interpretive nature of mental states, the feminist attitude toward juries, and the political nature of evidence law.DOMA: An Unconstitutional Establishment of Fundamentalist Christianity
According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage," where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriages require "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals or justifications, betrays the Establishment Clause of the U.S. Constitution.