• Selected
• Entire List

Abstract:
More and more couples must decide what to do with frozen embryos upon divorce. This article discusses the developing jurisprudence, comparing different approaches adopted or suggested in various jurisdictions. The article concludes that while the enforceable agreement approach has its own difficulties, it is far preferable to some of the other approaches currently proposed or adopted.

embryos, divorce, agreement, contemporaneous consent, adoption, donation, destruction

Abstract:
Historically, churches severed their connections with their denominations for a variety of reasons. This article addresses the criteria to be used to determine who owns contested property in such disputes. Regrettably, there is a surprising degree of disparity both among and sometimes within states with respect to the conditions under which a national organization will own local church property, which makes it difficult for both local and national religious organizations to plan for and achieve desired ends.

denomination, deference, property, neutral principles, schism, congregational, trust

Abstract:
This symposium piece continues a debate between Thomas Stoddard and Paula Ettelbrick regarding the advisabiilty of pressing for same-sex marriage rights. While acknowledging that time, energy, and money might be spent in a number of ways that would benefit the LGBT community, the Essay nonetheless argues that because securing marriage equality in more states would be valuable both in itself and instrumentally, the struggle should continue unabated.

marriage, parenting, benefits, equality, civil unions, LGBT, same-sex

Abstract:
Several Supreme Court members favor the coercion test to determine whether Establishment Clause guarantees have been violated. Yet, the disparity among the Court members with respect to the reach and proper application of the test is so great that there is utter confusion in the lower courts with respect to what the test permits and prohibits. This Article discusses the various ways that the coercion test has been applied, concluding that until the Court decides what kind of coercion is prohibited or even what the test is designed to prevent, the current chaos and confusion in the lower courts can only increase.

coercion, Establishment Clause, offense, proselytizing, sectarian

Abstract:
This article traces the evolution of Establishment Clause jurisprudence with respect to state funding of primary and secondary religious schools. What was initially a concern that the state not support religious teaching evolved into an analysis of whether non-sectarian benefits were being accorded to religious and non-religious schools alike. Then, the Court modified its approach, focusing on whether what was admittedly state support of the teaching of religion could reasonably be imputed to the state. While the individual changes in the Court's approach themselves were often not dramatic, they collectively have resulted in a jurisprudence that cannot be squared with the letter or spirit of Everson, even when Everson is understood to be much less separationist than is commonly supposed.

Establishment Clause, funding, primary/secondary schools, private choice

Abstract:
The Endorsement test is one of the tests used by the Court to determine whether Establishment Clause guarantees have been violated. While a variety of authors have noted that the test is difficult to apply and may result in relevantly similar cases being decided differently, commentators have paid too little attention to some of the ways that the test itself has evolved over the years. Currently, the test is often used not to protect minority religious viewpoints but, instead, to undermine the reasonableness of those individuals who are offended when their religious views are ignored or undermined. While once appearing to offer an approach whereby religious pluralism might be promoted, the Endorsement test now seems more likely to be used to oppress than to further tolerance and respect for diverging religious and secular views. This article suggests that the test as used currently seems to be doing little if any independent work and, instead, is all too often simply used to rationalize results reached in other ways and to impugn the judgment or knowledge of those who disagree.

endorsement, Lemon, purpose, effect, reasonable, Establishment Clause, hostile, informed

Abstract:
This Article traces the development of modern Establishment Clause jurisprudence with respect to religion in the public schools, noting how the Court's analyses and justifications have changed over time, protestations to the contrary notwithstanding. The Article examines how the logic of the Court's current approach would permit practices long thought to violate Establishment Clause guarantees, concluding that the current approach is radically misconceived as a matter of both constitutional law and good public policy.

public schools, sectarian, prayer, content discrimination, viewpoint discrimination

Abstract:
The Court has yet to offer a coherent analysis of the constitutionality of public funding of devotional studies. Not long ago, this was one of the few areas that could not be funded. Then, the Court did an about-face, suggesting that devotional studies had to be funded because this area was constitutionally indistinguishable from other areas of study that were permissibly funded. Then, the Court changed course again, suggesting that states could choose whether or not to fund these studies. The Court's most recent formulation of Establishment Clause limitations in this area is neither stable nor satisfying, and we likely will soon see yet another change, making constitutional analysis in this area even more difficult to understand.

devotional studies, sectarian, secular, clergy, proselytize, ministerial studies

Abstract:
This article discusses two issues involving parent-child relationships: (1) whether adoptions are subject to full faith and credit guarantees and (2) whether states are free to ignore a sister state's custody or visitation decree if such a decree violates local public policy. The foci of the discussion are Finstuen v. Crutcher in which the 10th Circuit struck down an Oklahoma statute precluding the state from recognizing both of a child's same-sex parents and the Miller-Jenkins v. Miller-Jenkins cases in which Virginia and Vermont courts had to decide which state court had jurisdiction to resolve custody and visitation issues arising from the dissolution of a Vermont civil union. The article suggests that while decided correctly, these cases illustrate some of the difficulties that same-sex parents and their children may face in the future to the detriment of the families themselves and society as a whole.

adoption, full faith and credit, custody, visitation, DOMA, PKPA, public policy

Abstract:
This article discusses Establishment Clause jurisprudence, focusing specifically on public aid to religious colleges and universities. The article examines the trilogy of cases in which the Court addressed these issues: Tilton v. Richardson, Hunt v. McNair, and Roemer v. Board of Public Works of Maryland, noting that the jurisprudence in these cases was neither as internally consistent nor as compatible with the then-current jurisprudence as is commonly thought. The article also examines some of the more recent cases in the lower courts involving challenges to aid to sectarian schools, explaining why it is difficult to tell whether these decisions are best construed as applying or as repudiating existing doctrine. The article concludes that the current Establishment Clause limitations on public funding of sectarian institutions of higher learning are so weak that they do virtually no work except, perhaps, to lead to the dilution of Establishment Clause guarantees more generally.

sectarian, colleges, universities, Tilton, Roemer, Hunt, public funding

Abstract:
This article discusses whether there is a constitutionally protected liberty interest either in being adopted or in the state's not creating unnecessary obstacles to adoption. Focusing on the liberty interests implicated in the foster care context, the article suggests that the relevant jurisprudence is much more nuanced and supportive of such an interest than many courts and commentators would have one believe. The article concludes that claims to the contrary notwithstanding, the United States Supreme Court decision in Smith v. Organization of Foster Families For Equality and Reform (OFFER) and other cases at least suggest that the interests implicated in adoption should be given constitutional weight, at least in those cases in which there are no competing interests of biological parents to be weighed in the balance.

OFFER, adoption. foster, liberty, section 1983, biological parents

Abstract:
This article analyzes the developing jurisprudence regarding the constitutional rights of non-marital fathers, examining Stanley v. Illinois, Quilloin v. Walcott, Caban v. Mohammed, Lehr v. Robertson, and Michael H. v. Gerald D. The article also examines several cases in which state courts have sought to apply this jurisprudence in instances in which non-marital, biological fathers tried to block or undo adoptions of the children they had helped to create. Concluding that the Court likely views the parental rights of non-marital fathers as even less robust than is commonly thought, the article offers some modest suggestions about the protections that might be created by statute.

parental rights, biology plus, non-marital, Stanley, Caban, Lehr, Quilloin, Michael H

Abstract:
Same-sex marriage opponents sometimes suggest that if same-sex unions are constitutionally protected then polygamous marriages are protected as well, and then conclude that they have thereby demonstrated that both types of unions can be prohibited by the states. Yet, this hardly follows, given that there are various differences between these kinds of unions that have constitutional weight. That said, however, it is not at all clear that state bans of all polygamous unions should pass constitutional muster, Reynolds v. United States notwithstanding. This article compares and contrasts the claims that the Federal Constitution protects same-sex unions on the one hand and polygamous unions on the other as a matter of Free Exercise, suggesting that such guarantees may well be read to require that states recognize some same-sex and polygamous unions.

same-sex marriage, polygamy, free exercise, Reynolds

Abstract:
The Court's proselytizing jurisprudence might seem relatively straightforward, as reflected in the Court's Village of Stratton opinion. Yet, the jurisprudence is far from clear when one factors into the analysis the Court's analyses in the ISKCON cases. This article examines the Court's proselytizing jurisprudence, suggesting that members of the Court seem to be of at least two minds both with respect to whether religious speech should simply be treated as any other form of protected speech and with respect to whether religious fundraising should be afforded robust constitutional protection. The article concludes that the ambivalence on these questions helps to explain what is currently a confused and confusing jurisprudence.

proselytize, fundraising, ISKCON, religious speech

Abstract:
In this symposium on Loving v. Virginia, the article reexamines Loving in light of some of the mistaken interpretations of it offered in the case law and secondary literature. Contrary claims notwithstanding, the Loving Court did not hold that interracial bans were unconstitutional only because they privileged one race over another, as if equal-handed interracial marriage bans would pass constitutional muster.

After discussing Loving and the right to marry jurisprudence more generally, the article focuses on three cases analyzing the constitutionality of same-sex marriage bans. The justifications for upholding the bans and the revisionist treatments of Loving and right to marry jurisprudence more generally in Morrison v. Sadler, Hernandez v. Robles, and Andersen v. King County are embarrassing, and simply would not have been offered had the issue not involved the constitutionality of same-sex marriage bans. The article concludes that all are harmed when both constitutional rights and good public policy are ignored so that an undeserved burden can be imposed on a disfavored minority.

loving, same-sex marriage, right to marry, equal protection

Abstract:
The constitutionality of Pledge of Allegiance recitation in school has received national attention, in part because of ongoing litigation in the Ninth Circuit. This article examines the Pledge case law, focusing on the various Establishment Clause tests articulated by the Court. Although Pledge recitation, even with an opt-out possibility for objecting students, seems to violate constitutional guarantees whether one considers the Lemon test, the endorsement test or the coercion test, it is argued here that one cannot confidently predict what the Court would say were it to consider a Pledge challenge on the merits. The only matters about which one could be confident would be that the Justices would be divided, the opinions would be rancorous, and the Establishment Clause jurisprudence would be in great need of further clarification.

establishment clause, coercion , endorsement, lemon, marsh, pledge of alleigance

Abstract:
In Van Orden v. Perry and McCreary County v. ACLU, the Court handed down two decisions concerning Ten Commandments displays. One might have hoped that the Court would have clarified the jurisprudence when upholding the constitutionality of one display and striking down the other as a violation of constitutional guarantees. Regrettably, the Court only made a confusing jurisprudence more confusing - members of the Court could neither agree about which test to use in such cases nor how the relevant tests should be applied. This article examines Establishment Clause jurisprudence with a specific focus on Ten Commandments displays, concluding that the Court has squandered a golden opportunity to clarify the relevant jurisprudence. One can only hope that the Court will take the next opportunity to offer a considered and workable approach to Establishment Clause issues rather than illustrate some of the evils that the Establishment Clause was designed to prevent.

10 Commandments, Establishment Clause, coercion, Lemon, Marsh, endorsement

Abstract:
This article discusses the different kinds of state marriage amendments that have been passed to prevent same-sex couples from marrying. The language in some of the amendments is open to a very broad construction, creating the potential for unforeseen and undesirable effects the imposition of which cannot be justified by appeals to intent, plain language, or good public policy. The amendments adopted in Michigan and Ohio are examined more closely than some of the others, since the Michigan and Ohio amendments provide good examples of language that either might be or has been interpreted in ways which were likely not anticipated by those voting for them.

The article suggests that many of these amendments might be interpreted to be a rejection of recent ALI proposals regarding family dissolution and even a rejection of some of the fairly well-settled policies represented by Marvin v. Marvin. The article further suggests that broad constructions of these amendments make them more vulnerable to constitutional attack and that courts should construe them narrowly because doing otherwise will subvert the language of the amendments themselves, the intentions of those voting for them, good public policy, constitutional guarantees and basic principles of fairness.

marriage, amendment, construction, incidents, equal protection, due process, parenting, domestic violence, ALI, Marvin

Abstract:
This article explores Justice Oliver Wendell Holmes's position on the relationship between law and morality, discussing some of the mistaken interpretations of that position. Commentators' claims to the contrary notwithstanding, Holmes' predictive theory of law and his discussion of the "bad man" do not illustrate the separation between law and morality but merely that lawful actions need not be performed for morally praiseworthy reasons and that positive law and morality do not always coincide. Holmes suggests that the conflation of law and morality might be reduced by changing legal terminology so that moral and legal terms do not overlap, a proposal with potential drawbacks that Holmes did not seem to appreciate. That said, however, detractors overestimate the extent to which Holmes asserted that law and morality should be distinguished, thereby distorting Holmes' views and the value of his insights.

Holmes, morality, bad man, natural law, prediction theory, intention, motivation

Abstract:
This article discusses the Federal Marriage Protection Amendment (FMPA), which is open to a broad range of constructions. Even had it been better crafted, it still would have been open to multiple interpretations, as is evidenced by the numerous readings of the Eleventh Amendment to the United States Constitution that have been offered by the Court, as well as by some of the very broad constructions given to seemingly clear and narrow language in some of the recent state marriage amendments. The article concludes that the FMPA, both as it has been proposed and as it likely will appear even if modified, should not be passed.

marriage, same-sex, amendment, Eleventh Amendment, privacy,incidents of marriage

Abstract:
This symposium article discusses Lofton v. Secretary of the Department of Children and Family Services, an Eleventh Circuit decision upholding Florida's gay adoption ban. Lofton was noteworthy, in part, for its utterly implausible reading of Lawrence v. Texas. The Court could easily have reversed Lofton without expanding current law. However, it instead denied certiorari, leaving open whether Fourteenth Amendment equal protection and due process guarantees are less robust than they were before Lawrence. It is unclear what the Court will say when it finally does hear a case implicating the issues raised in Lofton, although it may well be that the decision will be broader than a Lofton decision would have been, making opponents of equal rights for sexual minorities rue the day that the Court denied certiorari in Lofton.

Lofton, Lawrence, adoption, gay, lesbian, due process, equal protection

Abstract:
The ALI Principles of the Law of Family Dissolution offer a number of considerations to be taken into account when deciding child support issues. This chapter focuses on one kind of case - when income should be imputed to a stay-at-home parent - to illustrate some of the competing interests and rationales which are involved in such decisions. The chapter suggests that while the goals and considerations cited by the ALI are eminently sensible, there is a remarkable looseness of fit between these goals and considerations on the one hand and the actual recommendations on the other. This is regrettable. Because the difficult decisions will not involve whether to consider these competing interests and rationales but how heavily to weigh them, the ALI has offered no helpful guidance to jurisdictions deciding whether or how to modify their child-support policies.

child support, stay-at-home parent, income imputation, shirking, public policy

Abstract:
Some commentators suggest that Lawrence v. Texas is best understood as incorporating John Stuart Mill's harm principle from "On Liberty." These commentators are incorrect in two different respects: (1) they misconstrue Mill's principle by making it less robust than it actually is, and (2) they misrepresent Lawrence by characterizing it as merely standing for this watered-down version of the harm principle. Lawrence is not merely about the freedom from state interference, since it goes out of its way to affirm the positive worth of same-sex relationships. While we will not know what Lawrence means for years to come, we can be confident that some of the interpretations of it that are currently offered simply cannot be right.

Mill, Lawrence, On Liberty, LGBT, Lofton, value-affirming

Abstract:
This symposium article discusses recent state constitutional amendments limiting marriage, suggesting that many of the rationales offered in support of such amendments involve faculty factual assertions or conclusions which do not follow from the premises offered. The article concludes that the state marriage amendments do not strengthen marriage but instead make it a political tool, thereby sullying it in the name of protecting it.

marriage, constitutional amendment, children. benefits

Abstract:
Some commentators read Lawrence v. Texas to celebrate licentiousness, whereas others argue that it only protects same-sex marriage-like relationships. Neither view captures Lawrence, which offers constitutional protection for both relations and relationships. Professor Sunstein argues that the decision is best understood in terms of the Court's unwillingness to let laws stand that have fallen into desuetude, and Professor Eskridge suggests that Lawrence is best understood as reflecting minimal tolerance of the LGBT community. Neither interpretation captures the force or the promise of the decision. This article explains why many of the current interpretations of Lawrence are in error and how that decision is best understood.

Lawrence v. Texas, privacy, marriage, licentiousness, desuetude, tolerance, privacy, equal protection, due process

Abstract:
This article discusses the proposed Federal Marriage Amendment, which should not be adopted for several reasons, not least of which is that its reach is ill-defined. To the extent that its reach can be anticipated, there is either surprisingly little connection between what the amendment purports to do and the justification offered for its adoption or surprisingly little discussion of the amendment's breadth and the effects that it is likely to have. The article discusses some of the possible interpretations which courts are likely to offer when interpreting the amendment and concludes that the FMA, if adopted, would undermine rather than serve the interests of America's families. This is the kind of amendment which should not even have been proposed much less adopted.

Marriage, amendment, families, children, constitution, interpretation, incidents

Abstract:
This article discusses Lofton v. Secretary of the Department of Children and Family Services, in which the Eleventh Circuit upheld Florida's refusal to permit adoptions by individuals in same-sex relationships. The decision was noteworthy in its refusal to take either Lawrence v. Texas or the best interests of children seriously. The article suggests that the Court's refusal to hear the appeal in this case was a regrettable error which will (1) harm children, (2) undermine Lawrence in particular, and (3) undermine the Court's credibility more generally. The article concludes that the Court must correct this mistake at the first opportunity to minimize the harm that will occur from letting a decision like Lofton stand.

Best interests, due process, equal protection, Lawrence v. Texas, gay, lesbian, adoption

Abstract:
This article discusses the constitutionality of the Defense of Marriage Act (DOMA) in light of Lawrence v. Texas. The Act has two parts: one suggests that states need not recognize same-sex marriages validly celebrated in other states and the other suggests that same-sex marriages will not be recognized for federal purposes. Each part is vulnerable to constitutional attack on equal protection grounds as involving either a sex-based classification triggering intermediate scrutiny or, perhaps, an orientation-based classification triggering rational basis with bite scrutiny.

If construed broadly, the DOMA part discussing interstate recognition practices is constitutionally vulnerable because it involves Congress's exceeding its powers. Further, the Court has suggested that the Constitution imposes a fairly demanding standard if the federal government is going to be justified in supplanting state definitions of family, and the DOMA part defining marriage for federal purposes fails to meet that standard. The article concludes that there are numerous bases upon which DOMA can be struck down, even bracketing whether there is a constitutional right to marry a same-sex partner.

same-sex marriage, DOMA,, federalism, interstate recognition, spending, equal protection

Abstract:
In Lawrence v. Texas, the Supreme Court held that adult, consensual, same-sex relations are constitutionally protected. In his dissent, Justice Scalia suggested that Lawrence had important implications for the right to marry a same-sex partner. This article analyzes two post-Lawrence decisions involving challenges to same-sex marriage bans - Standhardt v. Superior Court and Lewis v. Harris. The article suggests that neither decision offers a plausible reading of either Lawrence or state law and concludes that the courts might well have reached much different conclusions had they been willing to take Lawrence or local law more seriously.

Marriage, gay, lesbian, Lawrence, equal protection, due process, privacy

Abstract:
This article discusses the varying approaches adopted by states with respect to whether to recognize wrongful conception, wrongful birth, and wrongful life, with special attention paid to Virginia jurisprudence both because Virginia has case law supporting the recognition and the non-recognition of a cause of action for wrongful life and because neither the Virginia Supreme Court nor the Virginia legislature has yet addressed that issue. The article suggests that many of the justifications offered for refusing to recognize some of these causes of action (e.g., a desire not to promote abortion) do not support a blanket ban on their recognition but at most a limitation on the contexts in which they might be recognized. The article concludes that states should re-examine their approaches regarding whether to recognize the birth-related torts to make the jurisprudence fairer, more consistent, and more likely to promote good public policy.

Wrongful life, wrongful birth, wrongful conception, wrongful pregnancy, public policy, abortion

Abstract:
This article looks at three cases - Lawrence v. Texas, Goodridge v. Dept. of Health, and Baker v. State - for their interpretations of Loving v. Virginia's implications for equal protection jurisprudence. The article suggests that the analyses offered in Baker and in the Lawrence and Goodridge dissents neither account for the Loving decision itself nor for the jurisprudence as it has developed since then. The article concludes that an examination of same-sex marriage bans in light of contemporary equal protection jurisprudence will yield the conclusion that such bans discriminate on the basis of sex, triggering heightened scrutiny, and that some of the characterizations of Loving and the subsequent jurisprudence offered by commentators and courts wishing to avoid that result would, if adopted, put the equal protection guarantees for all people at risk.

Equal protection, tiers of scrutiny, Loving, Feeney, Goodridge, Lawrence, Baker, sex discrimination

Abstract:
This article examines the implications of Lawrence for the constitutionality of same-sex marriage bans. While Lawrence does not hold that same-sex marriage must be recognized, it, nonetheless, overrules Bowers, which had been (wrongly) thought to preclude same-sex marriage. The Court, thereby, makes even clearer that such unions may have constitutional protection. Further, by holding that non-marital, same-sex, adult, consensual relations are protected, the Court lends support to the claim that same-sex unions are also protected. Traditionally, marriage has been privileged over non-marital relations for constitutional purposes and the Court will have to significantly modify the existing jurisprudence to escape that implication. The article concludes by suggesting that, although same-sex marriage bans violate equal protection and due process guarantees, it is not at all clear that the Court will recognize this anytime soon.

Lawrence, same-sex marriage, non-marital relations, Bowers, loving, McLaughlin, equal protection, due process

Abstract:
Brown v. Board of Education is often described as having reached the right result but as not having had a good basis in existing law. Yet, the relevant jurisprudence existing before Brown provided ample support for the decision. While the Court may have erred in failing to make clear the doctrinal developments that had occurred in the preceding half-century and instead in emphasizing recent social scientific studies, the Brown decision was nonetheless firmly grounded and eminently defensible as a matter of law.

Segregation, Brown v. Board of Education, separate but equal, stigma

Abstract:
This article discusses two distinct but related issues: (1) whether those with a same-sex orientation should be allowed to adopt at all, and (2) whether second-parent adoptions should be permitted in cases in which the child would have two parents of the same sex. The article considers some of the arguments offered and studies cited to establish that those with a same-sex orientation should not be permitted to adopt and notes that these arguments and the ways that these studies are being used suggest that no one should be permitted to adopt, a position which few if any commentators committed to promoting the best interests of children would be willing to endorse. The article also discusses some of the second-parent adoption cases, noting that in many of the cases in which such adoptions were not permitted the child's interests was undermined rather than promoted by the decision. The article concludes that children's interests are best promoted when sexual orientation of the would-be parents is not considered, and both singles and non-marital couples are permitted to adopt and provide homes where children might flourish.

Adoption, gay, lesbian, second parent, Lofton, statistics

Abstract:
This article discusses the implications of Lawrence v. Texas for same-sex marriage in light of the Court's right to marry jurisprudence. That jurisprudence involves two strands which establish why the right to marry is fundamental - one focuses on the importance of marriage for the adult parties and the other focuses on the importance of marriage for children that the couple may be raising. Both strands support that the right to marry a same-sex partner is protected, especially after the Lawrence decision, although it does not seem likely that the Court will recognize this anytime soon.

Lawrence, same-sex marriage, fundamental right, children

Abstract:
This article discusses whether states must recognize same-sex unions validly celebrated in other states. It explains the full faith and credit requirements imposed by the Constitution with respect to marriages, divorces, and civil unions, and analyzes the modifications created by the Defense of Marriage Act as well as whether that act passes constituional muster. The article also addresses some of the difficulties created by that act for post-operative transsexuals who marry in accord with local law.

Marriage, civil union, Defense of Marriage Act, full faith and credit, transgender marriages

Abstract:
This article discusses three recent cases concerning the ability of lesbian or gay couples or singles to adopt: Lofton v. Kearney, In re Adoption of R.B.F. and R.C.F., and In re Adoption of Luke. The article analyzes the trial court decision in Lofton, suggesting that the Florida policy preventing those with a same-sex orientation from adopting cannot plausibly be understood to be promoting the interests the state wishes to promote and that the court's decision helps illustrate why such bans should not be upheld even under rational basis review. The article also examines decisions by the supreme courts of Pennsylvania and Nebraska with respect to whether those states would permit second-parent adoptions. While it is unsurprising that a state supreme court might reach one result when interpreting that state's law while a different supreme court reaches a different result when interpreting that state's law, it is surprising that one court would adopt a rationale justifying its decision which a different supreme court found so absurd that that latter was unwilling to attribute such a rationale to the legislature. The article points out that when recognizing that second-parent adoptions were permissible, the Pennsylvania high court rightly recognized that certain implications would be absurd and thus could not plausibly be attributed to the Legislature. Ironically, when finding that such adoptions were not permitted under state law, the Nebraska high court had to ignore the statutory language as well as attribute an absurd purpose to the Legislature. The article concludes by suggesting that adoption by lesbians and gays promotes the interests of the state and all of the individuals involved and thus should be permitted in both kinds of contexts discussed in the article, and that refusing to do so may well not pass muster even under rational basis review.

Second-parent, adoption, gay, lesbian, rational basis

Abstract:
Citing Missouri v. Holland and other cases for support, commentators suggest that the treaty power is subject to very few constitutional constraints and that the Court's recent expansion of the 11th Amendment might be circumvented through the use of this power. This article suggests that Missouri v. Holland and the other cases cited to establish the virtually plenary nature of the treaty power might be read much more narrowly than commentators imply and that the Court's current 11th Amendment jurisprudence is likely to inform any interpretation of the breadth of that power. The article discusses the Court's view that family law is paradigmatic of an area of law reserved for the states, and suggests that the current Court would hold that some areas of state family law cannot be supplanted by the federal government even via international agreement. The article concludes that the Court is unlikely to interpret the treaty power in a way which undermines core areas of state sovereignty, regrettable international consequences notwithstanding.

Missouri v. Holland, Curtiss-Wright, treaty power, domestic relations, 11th amendment

Abstract:
Recent high-profile cases regarding the validity of marriage involving transitioned transsexuals highlight the differences among the states with respect to how to define sex. In some but not all states, transitioned transsexuals may marry individuals of their chromosomal sex. Potential difficulties arise when transsexuals who have validly married in one state wish to travel through or move to another state, since it is not clear whether those marriages must be recognized. It is also unclear whether the Defense of Marriage Act speaks to this issue and, if so, what it says. Ultimately, the Court will have to address these issues and decide whether the right to marry really is a fundamental right protected by the Constitution.

Abstract:
This article discusses the constitutional and public policy issues implicated in marriages involving transsexuals, focusing on the recent cases of In re Estate of Gardiner and Littleton v. Prange. These and other cases help demonstrate the speciousness of the rationales currently offered to limit the marriage rights of the LGBT community. The article concludes by suggesting that current marriage policies undermine the very values that they are supposed to support and that a serious commitment to family values would require a significant reworking of current marriage laws.

Abstract:
This article discusses the President's pardon power, examining its modest constitutional limitations and different theories about whether and when its use should be limited. Included are discussions of whether the Due Process and Equal Protections Clauses provide any protection for would-be pardonees as well as whether a pardon challenge would even be justiciable. The Article concludes that limiting the pardon power through constitutional amendment would be neither necessary nor wise. Potential abuses are either already subject to sanction or sufficiently unlikely to occur that the costs implicated in framing and passing an amendment would more than outweigh any benefits likely to be accrued through such an amendment.

Abstract:
This book discusses Baker v. State, the Vermont decision leading to the recognition of civil unions, as well as some of the implications of that decision for those living in Vermont and elsewhere. It also discusses the constitutional significance of the diversity of religious opinion regarding the permissibility of same-sex unions, and how constitutional analyses of state regulation or prohibition of same-sex unions have important implications for the vitality of Fourteenth Amendment protections more generally.

Abstract:
The state interests allegedly promoted by prohibiting same-sex marriage include the interests in upholding religious values generally and the religious view of marriage in particular. Yet, there is no universal agreement among religions about the permissibility of same-sex unions and thus those who suggest that the same-sex marriage debate is between those who respect religious values and those who do not are mischaracterizing the participants in the debate. Indeed, the state's refusal to recognize same-sex unions notwithstanding their recognition by some religions implicates constitutional guarantees, and it is not at all clear that the states can justify such a refusal without stating with more specificity what substantial threat to public safety would be posed by recognizing such unions.

Civil unions, which accord same-sex couples the legal benefits and responsibilities of marriage but which are not the equivalent of marriage, seem designed to suggest the second-class status and lack of spiritual significance of same-sex relationships. Yet, states should not be deciding which religious practices do not have spiritual significance and certainly should not be precluding individuals from marrying out of deference to the religious sensibilities of some. Ironically, those who trumpet respect for religion in the same-sex marriage debate do not seem to appreciate that Free Exercise jurisprudence helps establish why same-sex unions should rather than should not be recognized by the state.

Abstract:
Hans v. Louisiana is thought by many commentators to have involved a sharp break with the past Eleventh Amendment jurisprudence. Claims to the contrary notwithstanding, Hans was quite understandable, given the political realities of the time and the then-developing jurisprudence. That said, however, the Court's current expansion of Eleventh Amendment immunity, which cannot be justified in terms of the framers' intentions, the developing jurisprudence, or good public policy, does more to undercut principled decision-making than might have been thought possible just a short time ago.

Abstract:
Commentators sharply disagree about the extent to which Congress can invoke its Exceptions Clause power and withdraw jurisdiction over certain contested matters from the federal courts. Some suggest that Congress has plenary power over the Court's appellate jurisdiction, others suggest that Congress cannot destroy the Court's essential role, and still others offer different theories. Still other commentators focus on the degree to which Congress is precluded from shielding matters from federal judicial review more generally, suggesting that the Congress can preclude the Court from hearing certain matters as long as some federal court can hear the matter at issue. These latter commentators suggest that in important respects the Supreme Court is on a par with the other federal courts. This article suggests that these interpretations are neither particularly plausible nor likely to be adopted by the Court, concluding instead that the Court would likely adopt the position that seems to account better for the intentions of the Framers, namely, that Congress has much less discretion to limit the Court's jurisdiction than is commonly supposed, especially if the proposed limitation could not be explained by appealing to the need for specialized legal expertise.

Abstract:
The ALI has recently suggested that qualifying, non-marital, cohabiting partners be treated as having taken on certain financial obligations with respect to each other. Basically, absent an explicit agreement to the contrary, the individuals will be treated as if they had married for purposes of determining their inter se rights and responsibilities, but will be treated as unmarried as far as the obligations of third parties are concerned. While this proposal has a variety of strengths, it is likely to be criticized as undermining the family, especially because same-sex partners may qualify as "domestic partners." The article shows why these criticisms lack force. While the ALI Recommendation has its weaknesses, it nonetheless is a step in the right direction and deserves serious consideration.

Abstract:
Some opponents of same-sex marriages and civil unions suggest that the legal recognition of such relationships would constitute state endorsement rather than toleration and, thus, should not be accorded. The difference between endorsement and toleration is explained either in terms of Establishment Clause jurisprudence or in terms of the difference between statutorily permitted activity, on the one hand, and constitutionally protected activity on the other. Yet, Establishment Clause jurisprudence makes clear that the state is not permitted to express approval of some citizens so as to make other citizens feel like outcasts, and the difference between permitted and protected activity helps establish why same-sex relationships must be recognized as a matter of constitutional right rather than may be recognized as a matter of legislative discretion. Ironically, the arguments of these commentators help establish why same-sex marriage must be recognized as protected by the Federal Constitution and not merely as a status which may, but need not, be afforded by the different state legislatures.

Abstract:
By recognizing civil unions, Vermont permits same-sex couples to secure all of the benefits of marriage afforded by the state including the partner's right to be considered the presumptive parent of a child born into the union. Given the Federal Defense of Marriage Act (DOMA) and the mini-DOMAs passed by various states, this presumptive parental status might be at risk were a couple who had celebrated a civil union to travel through or move to another state with their child. The partner's parental status would be less subject to attack were he or she to have taken advantage of Vermont's second-parent adoption provision. Because second-parent adoptions are not predicated on the partners' having a marriage or marriage-like status, such adoptions would not fall within the exception created by DOMA (even if broadly construed) and thus would be much less likely to be challenged successfully in a state with a mini-DOMA.

Abstract:
While written for a symposium over three years ago, this article nonetheless assumed that the Hawaii referendum would pass and that the amended state constitution would be construed as not protecting same-sex marriage. The article suggests that the analysis in Baehr v. Lewin has equal force in establishing that same-sex marriage bans trigger heightened scrutiny under the Federal Constitution, since the criteria to determine whether a classification is sex-based are the same whether one is considering the guarantees offered by the United States Constitution or, instead, the Hawaii Constitution. The article further suggests that states will be unable to meet the requisite burden to establish that their same-sex marriage bans are sufficiently closely tailored to promote sufficiently important state interests.

Abstract:
Recently, the United State Supreme Court has been expanding the scope of the Eleventh Amendment immunity afforded to the states. Ironically, that expansion cannot be justified in light of the constitutional text, original intent, or even good public policy. Indeed, current Eleventh Amendment jurisprudence more accurately reflects the status of the states under the Articles of Confederation than under the Constitution, and the relationship between the state and federal governments currently favored by the Court is precisely what the Framers, including Madison, Marshall, and Hamilton, were rejecting when arguing for constitutional ratification.

Abstract:
The Nevada, Nebraska, California, and Alaska electorates have each passed referenda aiming to limit the marriage rights of same-sex couples domiciled in their respective states. While there are a number of constitutional bases upon which these referenda might be challenged, the focus of this article is on whether these referenda violate electoral process guarantees. Two recent federal appellate decisions - Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati and Coalition for Economic Equity v. Wilson - are examined in light of Romer v. Evans and the Hunter v. Erickson line of cases. The article concludes that even assuming for the sake of argument that both Cincinnati and Wilson are correctly decided and are in accord with the existing electoral process jurisprudence, that jurisprudence nonetheless requires that the referenda limiting same-sex marriage options be struck down as violating electoral process guarantees.

Abstract:
In Baker v. State, the Vermont Supreme Court held that the state's failure to accord same-sex couples the possibility of acquiring the benefits and protections afforded married couples violated the Common Benefits Clause of the Vermont Constitution. The Article suggests that the court misunderstood the conditions which trigger heightened scrutiny, since the court recognized that the marital statutes employ an express sex-based classification but nonetheless refused to apply the correct test. While employing heightened scrutiny would have yielded the same result - the court found a constitutional violation when applying a kind of rational basis with bite scrutiny - the court's misunderstanding is important to correct so that other courts will not be misled about what level of scrutiny to impose when deciding cases involving explicit classifications on the basis of sex or gender.

Abstract:
In the next few decades, some states are likely to become more inclusive and others less inclusive with respect to the marriages that they will recognize. This Article discusses the traditional rules regarding interstate marriage recognition and how the Defense of Marriage Act may have changed those rules. The Article concludes that if states are to remain part of one nation rather than become members of a loose confederation of states, the Court must hold that marriages valid in the states of celebration and domicile when contracted must be recognized throughout the United States.

Abstract:
In Baehr v. Miike, the Hawaii Supreme Court held that an amendment to the state constitution, adopted in 1998 via referendum, retroactively validated a state statute reserving marriage for different-sex couples. The court's holding contradicted retroactivity jurisprudence generally and Hawaii retroactivity jurisprudence in particular. Further, the court's analysis suggests that the referendum itself may have been invalid because the voters were misled about the effects that a "Yes" vote would have. Nonetheless, the Baehr decision has some positive aspects - the court not only made clear that orientation discrimination is prohibited by the Hawaii Constitution, but also reaffirmed that same-sex marriage prohibitions classify on the basis of sex. These latter parts of the opinion may have salutary effects both in Hawaii and in other states, for example, when plaintiffs seek to establish that statutes reserving marriage for different-sex couples discriminate on the basis of sex and, hence, are unconstitutional on either state or federal grounds. Thus, while the decision was disappointing, it should by no means be thought to be without any redeeming features.

Abstract:
In Baker v. State, the Vermont Supreme Court suggested that the Vermont Constitution's Common Benefits Clause required that same-sex couples be afforded the opportunity to receive the benefits and protections of marriage. The court refused to address whether the stigma associated with the creation of a separate status would suffice to invalidate it. This Article suggests that the civil union status created by the Vermont Legislature does not pass state constitutional muster both because of the stigma it imposes and because same-sex couples domiciled in Vermont who celebrate a civil union will likely be accorded fewer benefits and protections by other states than they would have received had they married. This analysis is not dependent upon a finding that the Defense of Marriage Act is unconstitutional, although it would be even more obviously true if, for example, the Act were struck in its entirety or even if the section of DOMA dealing with federal benefits were struck down.

Abstract:
Part of a symposium on Brown v. Board of Education, this article discusses the Court's equal protection jurisprudence in the context of higher education. Recent decisions cast doubt on the constitutionality of Historically Black Colleges and Universities (HBCUs), although two members of the current majority that has been rewriting equal protection jurisprudence have indicated that they do not believe that HBCUs are unconstitutional. While the Court's upholding the constitutionality of HBCUs would be a good result, the article concludes that until the Court develops a more nuanced approach in its equal protection jurisprudence, the Court will continue to promote racial dissension and disunity in this country.

Abstract:
The article discusses why the right to privacy protected by the United States Constitution includes the right to marry a same-sex partner whether or not it includes the right to engage in sodomitical relations. The article focuses on different explications of Bowers v. Hardwick, suggesting that Supreme Court decisions before and after Bowers undermine the interpretation of that decision offered by same-sex marriage opponents. The article further suggests that particular states with more robust constitutional protections of the right to privacy than is offered in the Federal Constitution would seem compelled on state constitutional grounds to recognize the right to marry a same-sex partner, even were the argument concerning federal right to privacy protections rejected.

Abstract:
This article examines some of the recent Loving v. Virginia scholarship which attempts to recharacterize the case so that it will be viewed as irrelevant for current debates surrounding same-sex marriage. The article shows why these attempts neither account for the opinion itself nor for the subsequent jurisprudence and suggests that, these attempts notwithstanding, Loving has much to say regarding same-sex marriage issues and that the speciousness of many of the current arguments to the contrary is itself telling.

Abstract:
The article examines and refutes several arguments offered by same-sex marriage opponents: (1) that Loving has no bearing on whether same-sex marriage bans are constitutional because Loving involved the invalidation of criminal statutes, (2) that there is somehow something undemocratic in using the courts to vindicate same-sex marriage rights, (3) that same-sex marriage laws are orientation- rather than sex-based classifications, and (4) that if same-sex marriage bans are unconstitutional, then so are bans of incestuous or polygamous marriages.

Abstract:
Commentators argue that same-sex couples cannot engage in truly marital acts and thus should not be allowed to marry. However, this approach relies on an understanding of "marital acts," which is neither widely accepted nor even plausible. Further, the analysis offered by these commentators fails to reflect the current legal understanding of the functions and goals of marriage, especially as informed by the developing right to privacy jurisprudence.

Even were the approach's definition of marital acts and understanding of marriage generally accepted and even were same-sex unions to involve something morally impermissible, a separate question would be whether such marriages should therefore not be legally recognized. That aspect of the analysis, namely, the connection between moral impermissibility and legal non-recognition, has thus far been either underdeveloped or simply ignored, even though it is the most crucial part of the argument. This article challenges both the plausibility of the accounts of marriage and marital acts offered by these commentators, and the implications that would follow even were those accounts more plausible.

Abstract:
In Saenz v. Roe, the United States Supreme Court recently reaffirmed the right of individuals to migrate to new states without fear that they will suffer discrimination for having done so, notwithstanding Congress's having authorized the discrimination at issue. The Article discusses right to travel jurisprudence in light of Saenz, suggesting that the opinion offers (1) yet another basis upon which the Defense of Marriage Act might be struck down as unconstitutional, and (2) a basis upon which the Court might strike down state statutes precluding recognition of same-sex marriages which were valid in the states of celebration and domicile at the time of the marriage.

Abstract:
Many jurisidictions will allow a gay or lesbian individual to adopt a child, but will not allow each partner of a same-sex couple to adopt a child jointly so that they each might be the legal parent of the same child. This article explores some of the reasons offered for and against permitting second-parent adoptions by lesbian and gay couples, concluding that permitting second-parent adoptions by such couples will promote the best interests of the child and that courts should not always wait for the legislature's explicit authorization before granting such adoptions. The article's focus is on some recent decisions addressing this issue and on the recent congressional attempt to limit second-parent adoptions in the District of Columbia.

Abstract:
The article discusses Romer v. Evans and Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati in light of the Court's political structure jurisprudence. Included within the analysis is a discussion of the analyses of Romer offered by different theorists such as Professors Farber, Sherry, and Sunstein. The article concludes by suggesting that Alaska's recent constitutional amendment prohibiting same-sex marriages violates federal constitutional guarantees.

Abstract:
In 1998, in response to court decisions suggesting that same-sex marriage bans implicate constitutional guarantees, electorates in Hawaii and Alaska voted to amend their respective constitutions in an attempt to make their same-sex marriage prohibitions immune from challenge on state constitutional grounds. This book analyzes a variety of issues raised by these referenda including the constitutionality of the referenda themselves, how the federal challenges to existing marriage bans may be helped by the state decisions that prompted the referenda, the constitutionally significant differences between same-sex marriages and other prohibited marriages (e.g., polygamous or incestuous unions), the constitutional issues that will be raised once a state recognizes same-sex marriages and same-sex domiciliaries of that state marry and then travel through or migrate to a state banning such marriages, and new analyses of ways in which the Defense of Marriage Act is constitutionally vulnerable. The book also offers an analysis of why some of the recent Natural Law criticisms of same-sex marriage are neither helpful in determining whether states should recognize same-sex marriages nor even internally consistent. This book develops and explores issues that were alluded to in my Legally Wed: Same-Sex Marriage and the Constitution (Cornell University Press, 1997).

Abstract:
Courts and commentators sometimes suggest that there is no need to recognize a cause of action for wrongful living-the individual can bring an action for battery if she has received medical treatment against her will. However, courts have tended to refuse to apply the protections currently existing within the law in this context and thus have helped to mute or negate the very protections that have been trumpeted as so important. Until the existing safeguards are respected or new protections are created, one can only expect to continue to see reports of the widespread provision of unwanted treatment.

Abstract:
While most jurisdictions recognize wrongful pregnancy or wrongful birth actions, very few recognize wrongful life actions. Yet, many of the rationales for and against recognizing the latter apply with equal force to the former. The article examines a variety of arguments offered to justify refusing to recognize wrongful life actions, concluding both that those arguments are unpersuasive and that the developing refusal-of-treatment jurisprudence militates in favor of recognizing an action for wrongful life.

Abstract:
Some but not all states recognize a variety of birth-related torts ranging from wrongful conception to wrongful birth. What is surprising is the lack of consensus regarding why these actions should be permitted and what sorts of damages should be compensable (where such actions are recognized) and why they should not be permitted (where they are not). Even more surprising is that the rationales offered by courts to justify their own positions as often undermine as support the conclusions reached. The article examines a variety of positions and rationales, concluding that in actions for wrongful birth and wrongful pregnancy, damages should neither be limited to those expenses incurred at or before birth nor to only those post-birth expenses which are extraordinary.