Suchergebnisse

chapter 1 The Rights and Wrongs of Sexuality -- chapter 2 The Sexual Citizen -- chapter 3 Understanding Lesbian and Gay Rights -- chapter 4 From -- chapter 5 Sticky Intuitions and the Future of Sexual Orientation Discrimination -- chapter 6 The Sex Discrimination Argument in Gay Rights Cases -- chapter 7 Coming Out and Challenging the Closet, 1961-1981 -- chapter 8 Shared Values of Singapore: Sexual Minority Rights as Singaporean Value -- chapter 9 Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants -- chapter 10 Black Rights, Gay Rights, Civil Rights -- chapter 11 The Epistemic Contract of Bisexual Erasure -- chapter 12 Gender Pluralisms under the Transgender Umbrella -- chapter 13 What's Wrong with Rights? -- chapter 14 Beyond the Locker Room: Changing Narratives on Early Surgery for Intersex Children -- chapter 15 HIV is a Virus, Not a Crime: Ten Reasons against Criminal Statutes and Criminal Prosecutions -- chapter 16 Secondary Effects -- chapter 17 The Regulation of Prostitution: Contemporary Contexts and Comparative Perspectives -- chapter 18 Evolving a Policy- Legal Status -- chapter 19 -- chapter 20 What's Queer about Polygamy?.

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face. This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) heightened health risks and vulnerabilities seeking healthcare; 3) family recognition and COVID-19; 4) employment discrimination; and 5) populations at special risk. It also bears noting at the outset that LGBT people already have close and long-lasting experience with HIV/AIDS, which has been described by many as a pandemic and which brought with it enduring stigma and many forms of discrimination and other harms. Even Dr. Anthony Fauci, who is a new hero to many Americans for his clarity in press briefings on COVID-19, is a familiar presence for AIDS activists because of his role in the 1980s and 90s as a leader of the federal government's response to HIV/AIDS.

"If you're afraid to offend, you can't be honest." "If you offend me, I can't hear what you're trying to tell me." —overheard on campus The debate over how colleges and universities should respond to contentious guest speakers on campus is not a new one. A quick look back to the early 1990s, among other times, shows commentators squaring off much as they do today about the tensions between protecting free expression and ensuring meaningful equality. Perhaps not surprisingly, the issues that contested speakers address are also much the same as they have been for several decades – government action and inaction on various issues, the rights and social status of identity-based groups, and con-flicts within political territories and regimes, among others. And, I would predict, questions about how institutional leaders should respond to these speakers will still be quite pressing twenty or thirty years from now. My aim in this brief essay is not to rehash the familiar debates but rather to consider whether and how schools ought to mitigate harms that may occur as a result of these speakers presenting their views on campus. That is, I start from the premise that, for both non-consequentialist and pragmatic reasons, colleges and universities should allow invited speakers to give their remarks on campus and should undertake serious efforts to minimize and prevent disruption. I also begin with the premise that some of these talks may come with real costs for individuals and groups within the community, for the school community as a whole, and for those who encounter these speakers and their views in non-campus settings.

Talking about marriage equality and reproductive rights advocacy together presents an interesting, and sometimes puzzling, assortment of challenges and opportunities. Both involve efforts to secure legal protections and social recognition that are fundamentally important to those who need them yet also deeply provocative to their opponents. For both, too, advocacy takes place on a shifting terrain shaped by competing views of sexuality, autonomy, equality, personhood, and more. Yet the two advocacy efforts have experienced very different receptions over time. Just over two decades ago, the Supreme Court expressly affirmed that women have a constitutional right to seek an abortion and rejected an effort by abortion adversaries to have the Court overturn Roe v. Wade. Marriage equality, by contrast, seemed almost like a pipe dream. Although the Hawaii Supreme Court's recognition of same-sex couples' marriage rights claim the following year seemed to hold promise, the federal government and many states rushed to pass "defense of marriage" acts (DOMAs) to short-circuit similar claims throughout the country. During the 1980s, the pattern was similar, with the prospects for reproductive rights seeming far more secure than the hopes for marriage equality. In the same term that the Supreme Court invalidated another Pennsylvania law restricting access to abortion, the Court also rejected a gay man's constitutional claim against Georgia's sodomy law, observing that it was "at best, facetious." Popular views about homosexuality generally, and marriage rights for same-sex couples in particular, were also overwhelmingly negative, while roughly half of Americans supported a woman's right to choose an abortion. More recently, though, the trajectories appear to have crossed. Public opinion and legal developments have moved sharply in favor of marriage equality. By contrast, during the same period, both case law and legislation have increasingly rejected advocates' claims and circumscribed access to abortion. This Essay aims to understand how advocacy strategies-particularly advocacy that is outside the courtroom but linked to litigation on a related issue-have contributed to these shifts in trajectories and helped to shape the environment in which courts are deciding cases. In particular, my focus is on the role of lawyers in contributing to and guiding that environment-shaping process.

While comparisons between marriage equality and reproductive rights advocacy can be fraught, a multidimensional advocacy framework helps to highlight the shared and distinct features of each. It illuminates, too, the ways in which advocacy strategies might reshape the landscape in which litigation is pursued. This recognition that the litigation landscape is subject to change also reinforces the value for each movement in learning from the other. Just decades ago, reproductive rights, including abortion, enjoyed a level of protection that marriage equality advocates could only dream about. Yet marriage equality likely would not have achieved its current momentum if reproductive rights had never been secured. It may be, just as marriage equality has drawn strength from the strategies and successes of reproductive rights advocates and has sidestepped some difficulties by learning from that experience, so too can reproductive rights advocates now consider whether some of marriage equality's multidimensional strategies might be useful in reshaping the landscape further still. 132

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument's evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it "obviously correct" that laws excluding same-sex couples from marriage discriminate facially based on sex or impose sex stereotypes. Yet advocates have tended to minimize these arguments and most judges either sidestep or go out of their way to reject them. Certain kinds of arguments, including the sex-discrimination argument in marriage cases, turn out to pose greater risks than others because they ask decisionmakers to confront long-settled social hierarchies and norms, such as those associated with gender roles. As a result, they risk inciting Burkean anxieties about the dangers of nonincremental change. Arguments that ask less of decisionmakers, such as those about animus associated with a particular enactment—or that have a more limited reach, such as heightened scrutiny for sexual orientation at a time when few explicitly antigay laws remain—are less likely to provoke that discomfort. Moreover, a win on these narrower arguments can also erode stereotypes and norms underlying a challenged law or social policy. In marriage cases, for example, a pro-equality ruling helps call longstanding marital gender roles into question even if the court's decision never mentions sex discrimination. Still, risky arguments add value within litigation by powerfully calling attention to deep problems that underlie a challenged law. Through close study of these costs and benefits, the risky-argument frame advanced here aims to illuminate the complex dynamics of argumentation in the litigation and adjudication of social-justice cases.

Sexual rules and regulations are among society's oldest yet it is only in recent decades that this once-stigmatized field has become the focus of scholarly attention. This volume, which includes some of the most thought-provoking and hard-to-find essays in the field, covers a diverse range of topics from sexual orientation and gender identity to intersexuality and commercial sex, and from HIV/AIDS and trafficking to polygamy. Through historical, political and critical-theoretical lenses, and through a global focus, the selections ask how we conceptualize the groups and acts subjected to sexual regulation and how regulations in the field implicate and produce understandings of sexuality and identity. By placing this variety of works together, Sexuality and Equality Law invites fresh insights into commonalities and synergies across regulatory arenas that are often isolated from one another. The volume's introduction situates all of these works in the broader field and offers readers an extensive bibliography. ; https://scholarship.law.columbia.edu/books/1232/thumbnail.jpg

Two fundamental standing problems plague Proposition 8's proponents and the Bipartisan Legal Advisory Group (BLAG) in the marriage cases currently before the U.S. Supreme Court. First is the Article III double-dipping problem, to which this Essay's title refers. This problem arises because those parties purport to derive their Article III standing by asserting the governments' interest in defending the challenged marriage laws. Yet the governments in both cases, via their chief legal officers, have taken the position that excluding same-sex couples from marriage is unconstitutional. To permit this Janus-faced commitment to both sides of the cases would render the concept of the government interest incoherent for Article III standing purposes. The second problem is that Proposition 8's proponents and BLAG both lack the enforcement powers that give rise to the government's "direct stake" needed for standing in federal court.

A major procedural question looms over the two marriage cases currently before the U.S. Supreme Court: Do the parties who seek to defend the marriage-recognition bans have standing to advance their views? The question arises because the governments that would have Article III standing, by virtue of their enforcement authority, are not defending their own laws. Instead, in Hollingsworth v. Perry, private parties are attempting to take up the state government's mantle to defend Proposition 8, which withdrew marriage rights from same-sex couples in California. And in United States v. Windsor, five members of the House of Representatives leadership seek to defend the federal Defense of Marriage Act (DOMA) in the name of the Bipartisan Legal Advisory Group (BLAG). As a preliminary matter, these parties' formal authority to assert the government's standing is questionable. In Perry, the California Supreme Court ruled that the ballot measure's sponsors could act in the government's stead to defend "their" initiative, but that ruling lacks support in California law. BLAG's authority in Windsor is also fragile. BLAG did not obtain approval from the House of Representatives until nearly two years after first intervening to defend DOMA in federal court (and well after filing its petition for a writ of certiorari in Windsor). And even with that approval, BLAG represents only the House, rather than the full Congress that passed DOMA. In addition, in both Windsor and Perry, there are significant problems with the lower courts having permitted intervention at all. There are two more fundamental difficulties with the Perry petitioners' and BLAG's claims to standing. First, each presents the Article III double-dipping problem to which this Essay's title refers. The problem arises because there are parties asserting the government's interest and, therefore, the government's standing, on both sides of each case. That is, the California and United States governments have taken the position that their exclusion of same-sex couples from marriage is unconstitutional while the Perry petitioners and BLAG seek to argue, also on the government's behalf, that the exclusions are constitutional. The second problem arises from the premise, essential to the standing claims of both the Perry petitioners and BLAG, that governments can confer their Article III standing on private actors and subsets of legislators. The difficulty is that the government's standing derives from its interest in enforcing its laws, which is not an interest shared by either group. The remainder of this Essay elaborates these two points in the context of the Perry and Windsor cases. I argue that both the double-dipping problem and the limits on a government's ability to transfer its standing to private actors in this context leave Proposition 8's sponsors and BLAG without Article III standing to press their positions. Nor can either group of would-be defenders demonstrate the "concrete and particularized" stake it would need to have standing in its own right rather than on the government's behalf.

This essay takes up questions regarding whether initiative proponents and legislators can defend a law in federal court when the government declines to defend. Looking first at intervention under the Federal Rules of Civil Procedure, I argue that neither has the cognizable interest needed to enter an ongoing lawsuit as a party. Yet even if they are allowed to intervene, these would-be defenders of state or federal law cannot take on the government's mantle to satisfy Article III because the government's standing derives from the risk to its enforcement powers, which is an interest that cannot be delegated to others. Nor can they make out any more than a desire to have the law enforced consistent with their views, which is the sort of generalized grievance the Supreme Court has long rejected as a basis for standing. Yet numerous courts have permitted intervention and accorded standing to these types of intervenors, including in the marriage cases before the Supreme Court in the 2012 term. We can understand this unduly generous approach as a part of a larger phenomenon at the crossroads of procedure and judicial legitimacy. In these high-vulnerability contexts, where courts are asked to decide the constitutionality of popular measures, legitimacy concerns, including what I term countermajoritarian anxiety and guilt, permeate procedural decisionmaking and, at times, override otherwise operative procedural constraints.

A major procedural question looms over the two marriage cases currently before the U.S. Supreme Court: Do the parties who seek to defend the marriage-recognition bans have standing to advance their views? The question arises because the governments that would have Article III standing, by virtue of their enforcement authority, are not defending their own laws. Instead, in Hollingsworth v. Perry, private parties are attempting to take up the state government's mantle to de fend Proposition 8, which withdrew marriage rights from same-sex couples in California. And in United States v. Windsor, five members of the House of Representatives leadership seek to defend the federal Defense of Marriage Act (DOMA) in the name of the Bipartisan Legal Advisory Group (BLAG).