Allen’s article “discusses the potential implications of the Court's morality-based rationale in Lawrence for First Amendment jurisprudence.” First he determines that the Supreme Court’s meaning in Lawrence v. Texas, 539 U.S. 558 (2003), is that legislatures cannot use morality as the sole purpose for enacting a law. He then discusses how this applies to judicial rulings as well. After that Allen “considers the implications of the decision's morality-based reasoning for First Amendment doctrine.” He specifically addresses implications for two free speech concepts under the first amendment: obscenity and hate speech. He argues that under Lawrence obscenity laws would fail if passed solely for moral reasons, but may survive if non-moral based reasons were provided, encouraging legislatures to create more evidence-based legislation. Allen also finds that hate speech laws are more suspect under Lawrence, since they are generally based on moral concepts, which corresponds with current jurisprudence. He concludes that “Lawrence's prohibition on the use of morality as the sole or dominant rationale for both constitutional interpretation and legislating undermines certain aspects of established law while simultaneously providing support of others.”

Poland and Latvia are both signatories to a number of treaties that are supposed to protect the rights of their gay and lesbian citizens, but as this report documents, both countries have failed to uphold their treaty obligations on a number of occasions. The report begins with a discussion of the relevant provisions of the European Convention for the Protection of Human Rights, and the Charter of Fundamental Rights of the European Union, to which both Poland and Latvia have acceded.

Andersen considers the history of the Lambda Legal Defense and Education Fund, the development of the “legal opportunity structure” in the U.S. , and their impact on significant cases in the modern gay and lesbian civil rights movement. She provides an in-depth analysis of sodomy-related cases in the periods leading up to Bowers vs. Hardwick [478 U.S. 186 (1986)], and then from Bowers to Lawrence v. Texas [539 U.S. 538 (2003)], and analyzes why the later case was successful when the earlier one had failed. She considers changes in the social milieu, the structure of the Supreme Court, and legal criticism of the Bowers decision that were all part of the “legal opportunity structure” that contributed to Lambda’s success in the Lawrence case. The later chapters of the book focus on anti-gay initiatives and same-sex marriage, and explore how the political landscape, or “political opportunity structure” may differ from the legal opportunity structure.

This article examines the use of foreign and international law in the adjudication of U.S. constitutional claims in gay rights cases. It explores the distinction between structural provisions and individual rights provisions, and it argues that foreign law can be particularly useful in advancing individual rights claims. Both due process and equal protection claims are considered.

While conservatives tend to merge law and morality, liberals prefer to maintain a distinction between the public activity of politics and the private sphere of morality. Ball suggests that pro-same-sex-marriage liberals should not blush to incorporate moral arguments into their briefs. The alternative, "neutral" position Ball characterizes as either "unappealing or unrealistic." While Ball may be right that individual justifications for favoring gay marriage may include moral premises, that is still far from concluding that a democratic State should likewise select for special favor one moral viewpoint from among all those espoused by its citizens. For example, his Proposition #1 ("Same-sex sexual relationships are as morally good as different-sex relationships"), which he takes as unexceptional, is exactly what conservative moralists would point to as being the primary disagreement. One cannot employ this premise without telling everyone who disagrees that their worldview is erroneous, which is precisely the kind of acquiescence our form of government should not be demanding. Governmental neutrality on moral questions may be flawed, but, given our prior political commitments it may remain the only posture consistent with our values.

The author looks specifically at the immutability element of the test for suspect class protections under the Fourteenth Amendment, and how it might apply to homosexuals. Is sexual orientation an “immutable” trait, at least within the sense required by contemporary constitutional analysis? Balog believes the answer is Yes, and therefore, “assuming homosexuals are able to meet the remaining three Frontiero factors [history of purposeful discrimination, object of deep-seated prejudice, and politically powerless minority], homosexuality should be classified as a suspect classification and receive heightened review.”

The author describes the considerable growth of China’s gay community in the last six years. Although the road toward full protection remains long, he is heartened by recent changes. He discusses policy developments relevant to the gay community in China over the last two decades, and he places them in a larger context of similar legal developments relating to gender law, antidiscrimination law and policy, and society in general. He then discusses the potential for future changes.

A rare empirical analysis, this article draws upon files of the Crown Prosecution Service in order to study the subset of murders of gay men in England and Wales. Bartlett concludes that gay sexual homicide can and should be considered as a coherent and discrete set of cases. They are both demographically, and in terms of the dynamics between the protagonists, different than heterosexual sexual murder.

An interesting section on this article documenting the treatment of transgender aliens seeking asylum in the United States asks whether, on the basis of the U.S. criteria, an American transgender would be entitled to asylum in a foreign country. According to those criteria, an applicant must prove that he or she was: (1) outside his or her home country; (2) a member of a particular social group, or had such a membership imputed onto them by his or her persecutor; and (3) persecuted in the past or has a well-founded fear of persecution in the future. A fourth criterion is that past or future persecution must be the basis of the applicant's real or perceived membership in the particular social group. The point is to test "United States asylum ideals against the reality of its domestic society," a test on which the U.S. is not likely score well, with a likely result that "another country applying United States asylum law would grant asylum to a transgender applicant based on his or her persecution in the United States."

The author, a Dutch law professor, examines the problem of cross-border recognition of same-sex relationships in the European Union. National courts have restricted competence to rule on these cases, depending upon the legislative enactment of specific rules. Thirteen of twenty-seven member states currently provide for some statutory recognition for same-sex couples. The variety of local solutions generate complicated interactions when couples migrate into new countries with differing categories, as illustrated in some intriguing tables to analyze her four scenarios. Local approaches are embedded in a more supportive European position that is grounded in human rights law, and which over time may effect more national uniformity within Europe favoring recognition of same-sex couples.

In the case of Boer-Sedano v. Gonzales [418 F.3d 1082 (9th Cir. 2005)] the ninth circuit ruled that a gay asylum seeker’s HIV or AIDS status could make return to his country of origin unreasonable. This brief article examines the Boer-Sedano case and explores its significance for asylum seekers with HIV or AIDS.

This article discusses the experiences of sexual minority individuals in their interactions with the courts, both as employees and as court users. The article reviews four empirical studies of LGBT individuals and the courts, one from California, one from New Jersey, and two from the United Kingdom. The differing viewpoints of heterosexual vs. homosexual respondents are also discussed. In general, a significant portion of the survey respondents felt that openly gay employees and court users received unfair treatment in a number of contexts, although this response was stronger among homosexual respondents than among heterosexual respondents.

The author creates a four part typology of state defense of marriage amendments: court-stripping amendments that reserves the question strictly to the legislature; marriage definition amendments that install a one-man-one-woman definition of marriage into the constitution; amendments that ban same-sex marriage and comparable statuses; and amendments banning recognition and the legal incidents thereof. Butland then ascertains the differential impact of the equal protection analysis of Romer v.Evans, 517 U.S. 620 (1996), for each of the four amendment types, concluding that types 3 and 4 violate the Romer standards, while types 1 and 2 do not.

This article examines whether there is any international obligation on the United States, arising from international standards or treaties, which mandates the protection of lesbians and gay men from discrimination or the decriminalization of gay sexual conduct. The International Covenant on Civil and Political Rights (ICCPR) is discussed. The United States’ reluctance to adhere to international human rights norms is also explored.

New Zealand decriminalized homosexual intercourse in 1986, yet some judicial opinions in New Zealand still contain language that reinforces and repeats negative stereotypes about homosexuality. This article examines the effect this language has on rights claims made by homosexuals. It argues that such language undermines sexual rights claims made by gay New Zealanders.

This eminently readable article articulates the conflict of laws issues raised by same-sex marriage. Included are discussions of the obligations of states to respect other states' laws or judgments, and whether DOMA violates the Full Faith and Credit Clause.

Based upon the author’s Clarendon Lectures in Law delivered in October 2005, this book analyzes the swift social changes from 1967, when the problem before the UK was whether to decriminalize homosexual conduct, to 2005, when Parliament passed the Civil Partnership Act that provided for the formal legal recognition of same-sex relationships. The first of three chapters sketches the Act’s historical background, and the second analyzes its specific provisions. The third chapter seeks to place these problems into a broader sociolegal context. As illustrated by prominent cases from other English language jurisdictions included in extensive appendices (comprising three-quarters of the book’s content), heretofore change on this front in the UK has been comparatively less driven by court decisions than by legislative enactments. With the recent creation in 2005 of a UK Supreme Court, however, this may change, raising new philosophical questions concerning the proper relationship between the judiciary, the legislature, and the executive branches of government.

Anthology consisting mostly of papers presented at a 2005 conference at Trinity College in Dublin. Contributors explore moral, philosophical and legal issues related to committed relationships under law, with an emphasis on same-sex couples and their families and the law of Ireland.

Leung v. Secretary for Justice [HCAL 160/2004], Hong Kong’s first gay rights case, declared the four provisions in the Crimes Ordinance involving homosexual conduct to be unconstitutional. This article calls for the affirmation of the court’s original ruling which relies on an equality analysis. It also rejects the critique that the court should have used a privacy analysis. The Court’s decision is analyzed in detail.

The argument in this article is fairly straightforward: Among the constitutionally protected rights is "the ultimate personal liberty," right of intimate association, of which marriage is a basic example. Denial of marriage rights to gay men and lesbians also infringes the right to privacy, which both the new conservative members of the U.S. Supreme Court -- Roberts and Alito -- testified the Constitution protects. The "barest majority of the Supreme Court [thus] appears prepared to defend these fundamental rights and not to reify outdated theories of substantive due process or equal protection that have been repudiated during the past fifty years." An optimistic assessment, to be sure.

This very brief (ten pages) government study provides an overview of the Court’s opinion in Lawrence v. Texas [539 U.S. 558 (2003)] and considers its impact on future suits about gay rights generally and same-sex marriage specifically. More extensive treatment of the latter topic can be found in the CRS report Same-Sex Marriages: Legal Issues (Alison M. Smith, last updated July 17, 2006, available at www.opencrs.com/document/RL31994/).

Gabilondo begins this discourse-grounded piece (that many readers will find to be opaquely abstract) with an extended fantasy narrative depicting the life of “Joe,” a secretly heterosexual male trying to exist in a “homonormative world” of gay supremacy. Joe’s tale allows the author to introduce the concept of “heterosexual interpellation.” Interpellation refers generally to “the notion that systems of ideas are the medium through which a person finds one’s sense of self and comes to recognizes oneself as an emotionally and politically sentient subject.” In this context, “Heterosexual ideology interpellates gays through legal disabilities and other limits on freedom,” with the result that “insult is the main vehicle for” self-recognition by gays. Gabilondo pushes for an “‘interpellative advocacy,’ a commitment to using crushed expectations—as reconstituted through libidinal rage—to further the ‘coming to speech’ of a sexual minority outside of the heterosexual matrix.

Grodin—a former Associate Justice of the California Supreme Court—argues that “state courts bear responsibility for developing a state constitutional jurisprudence which does not simply follow, in blind lock-step, the most recent pronouncements of the United States Supreme Court with respect to similar or even identically worded provisions, but which instead make a serious attempt to ascribe meaning to the provisions of the respective state constitutions in a principled but independent way.” He then applies this perspective to the problem of same-sex marriage and finds that the incoherency of rationality review provides an opportunity for “creative doctrinal development at the state level.”

Protection is meaningless, the author tells us, “if we are restricted from acknowledging our particular membership within” the category: “If a light-skinned person of color does not speak, she may be presumed to be white.” The paradigmatic example of such self-identifying speech is the coming out of the GLBT person. The author inventively builds upon the foundation of linguistic philosopher J.L. Austin’s three speech functions: “‘persuasive,’ in attempting to affect the thoughts or feelings of the listener; ‘creative,’ in engendering a promise, a bet, or another social contract or obligation; and ‘descriptive,’ in stating a neutral or verifiable fact.” Hanna argues that gay self-identifying speech possesses all three of Austin’s functional dimensions. Devoting sections to each, she concludes that the third, descriptive function of coming out speech, is the least explored, and offers a firmer basis for courts to protect such speech, something they have not always been willing to do (e.g., Rowland v. Mad River Local School District [470 U.S. 1009 (1985)]).

After a fertility doctor refused to perform an intrauterine insemination procedure due to his religious beliefs -- there was a disagreement whether he objected to the patient's status as a lesbian or as an unmarried woman -- the patient sued for a violation of California's Unruh Civil Rights Act. The California Supreme Court held, relying upon Employment Div. v. Smith, 494 U.S. 872 (1990), that there exists no First Amendment "exemption from a neutral and valid law of general applicability." Doctors are therefore not allowed to refuse to provide medical treatments due to their own religious beliefs, with two exceptions: The doctor can either cease to provide that service completely, or can refer the patient to another nonobjecting doctor within the same practice. The commentator views this as a realistic compromise. This ruling can be read in the context of moves by President Obama to overturn the Bush administration's hastily enacted "Provider Refusal Rule," which went into effect the day Obama took office, that has allowed doctors to claim such a religious exemption.

While not writing directly on issues relevant to a GLBT audience, Holland's analysis of the ways in which enforcement of immigration laws serves as de facto governmental regulation of family form offers some insight into difficulties experience within our own community. While family law has expanded to recognize many modern realities--step- and adopted children, and "functional" family units among others -- immigration policy remains mired in archaic notions of the traditional constellation. She contrasts two cases -- Nguyen v. INS, 533 U.S. 53 (2001) and Yin v. Esperdy, 187 F. Supp. 51 (S.D.N.Y. 1960) -- to show that INS rules are strictly construed to the extent the family at issue fails to conform to traditional nuclear models. Consequently many individuals who would be recognized by family law are denied that status by immigration authorities, and thus not allowed to enter this country to rejoin their relatives.

This student note argues that "bans on same-sex marriage violate the First Amendment's Establishment Clause." Of particular focus is Justice O'Connor's "endorsement test, which prohibits the government from conveying 'a message of endorsement or disapproval' of a particular religious viewpoint." The author applies this test "from the non-Christian's perspective to bans on same-sex marriage and concludes that these laws endorse the viewpoint of the dominant Christian majority."

The Marriage Protection Act of 2004 (MPA), or House Bill 3313, would strip the federal courts of jurisdiction over same-sex marriage cases. This article provides some history of the MPA. It examines the federal courts’ powers of judicial review, and Congress’s power over the courts. It concludes that attempts to curtail judicial review through the MPA would be unconstitutional. Equal protection, full faith and credit, and due process analyses are all discussed.

This article compares the U.S. Defense of Marriage Act and the Australian Marriage Amendment Act of 2004, both of which define marriage as between one man and one woman, and prohibit benefits to same-sex partners at the federal level. The author then goes on to consider the ramifications of unsuccessful court challenges to both laws. In the U.S., she finds that the consequences would not be that great because the federal government has limited ability to regulate marriage, hence the states would still be able to allow same-sex marriage. In Australia, in contrast, she believes that an unsuccessful court challenge (i.e., where the Australian Supreme Court upheld the validity of the Marriage Amendment Act) might also be held to preclude the states from allowing same-sex marriage as well because the Australian federal government has more Constitutional authority to regulate marriage than is the case in the United States.

All too often the debate over same-sex marriage takes on an erudite, disinterested intellectual tone as constitutional issues are pondered, social trends reviewed, and judicial opinions summarized. Knauer, a frequent writer on the topic, does some of this in her brief article about the shortcomings of federalism for this topic. The eye is drawn, however, to the concluding section which points out the real human costs of the disparate state approaches concerning gay and lesbian relationships.

Written from the legal perspective of the Anglo-Commonwealth jurisdictions, the author studies the argument that describing someone as gay or lesbian alone opens the speaker to defamation claims. Does “such an imputation tend to lower the reputation of a person in the estimation of ‘right-thinking’ members of society”? He finds that generally “there remains a reluctance on the part of the courts to definitively rule that the right-thinking person is now indifferent to imputations of gayness.”

Part of a symposium entitled, “Too Pure An Air: Law and the Quest for Freedom, Justice, and Equality,” this article offers an in-depth analysis of how treatment of gays by new members of the European Union—many from former communist regimes with a negative record on this issue—impacts their admission process. The author recommends that “the EU should seriously consider allowing gay rights to play a more prominent role in the course of the preparation of future enlargements.”

This author examines some issues that arise under various state “defense of marriage” laws. He identifies a number of issues that aren’t generally covered by those laws, such as persons migrating to the state, individuals attempting to avoid obligations incurred in other states, and litigation related to children of same-sex marriages who are now residing in the state. A number of attempts to deal with those situations, either by denying “contractual rights” to same-sex couples, by refusing to enforce judgments from other states related to same-sex unions, or by “blanket nonrecognition,” are most likely unconstitutional, because they either violate the Equal Protection or Full Faith and Credit clauses of the U.S. Constitution.

This brief article examines the treatment of same-sex partners and their families by the European Court of Human Rights (ECHR). It first lists the countries that have either legalized same-sex marriage or some other form of relationship recognition. It examines the ECHR’s definition of family and its treatment of same-sex couples and argues that the ECHR should expand its definition of family to include same-sex families.

With a forward by Martin Cauchon, the Canadian lawyer, politician and former Liberal Party of Canada cabinet minister who argued before the cabinet in favor of gay marriage, this book outlines the road to achieving same-sex marriage in Canada. It recounts the development of arguments, strategies and tactics used by both sides.

Oops. Lau reads Parents Involved in Community Schools v. Seattle School District, No. 1, 127 S. Ct. 2738 (2007), the majority of which included four conservatives, as introducing a new form of equal protection analysis that -- while created to resolve a dispute over racial integration in public schools -- can also be applied to bolster arguments for same-sex marriage. The sex discrimination argument for same-sex marriage has received little support in courts because the ban on marrying someone of your own sex "is applied equally to men and women." Virginia used this same argument to defend its anti-miscegenation laws in Loving v. Virginia, 388 U.S. 1 (1967), but lost because in practice the law "reinforced white supremacy." LGBT advocates have had a difficult time making a similar argument that banning same-sex marriage supports a gender-based hierarchy. Those difficulties have now been removed, says Lau, because as a result of Parents Involved "laws that make race-based distinctions -- even equally applied distinctions in integration programs -- are now subject to heightened scrutiny regardless of their substantive effects." In other words, Loving would have been decided the same way under the new rule even without a finding that the practice supported white supremacy, opening the door for a similar reassessment of the sex-discrimination argument for same-sex marriage.

Observing that for a provincial opinion such as Halpern v. Canada, 65 Ontario Rep. 161 (2003), there is "no higher honour ... than such lofty acknowledgment that it exists" as being criticized in Justice Scalia's dissent in Lawrence v. Texas, 593 U.S. 558, 573 (2003), the author uses that opportunity for a deeper scrutiny from the perspective of comparative constitutional law. Problems arise, he finds, in studying issues of constitutional law "in isolation from their enculturation in private law," with the result that too much of the credit goes to constitutional texts rather than to the private law that "informs the attitudes of the judges who construe constitutional rights."

The author examines the historical and doctrinal background of the “gay panic defense,” a variety of strategies that suggest a criminal defendant should be excused or justified if his violent actions were in response to a (homo)sexual advance. Drawing lessons from the Matthew Shepard trial, this article supports generally permitting gay panic defense arguments, since they are less harmful when made to a jury in open court than when forced underground. It proposes strategies for prosecutors to minimize homophobic juror bias and foster enlightened deliberations.

Discussion in the popular press (e.g., the Advocate's Dec. 16, 2008, cover issue on whether "Gay is the New Black") have added urgency to the long-standing question of the proper relationship of antimiscegenation laws against interracial marriage--and the judicial decisions that overturned them, including Loving v. Virginia, 388 U.S. 1 (1967)--to the current bans on same-sex marriage. Lenhardt suggests that the key to reframing this debate is to look at Loving's predecessor, Perez v. Sharp, 198 P.2d 17 (Cal. 1948). Perez encourages not an "analogy" that compares two different groups, but "a deeper appreciation of the extent to which state-imposed obstacles to marriage have operated to police identity, restrict opportunities for self-definition, and impede belonging."

An “exercise in normative theory,” this article reviews John Rawls’ concept of “justice as fairness” and extends it to same-sex couples in the context of immigration policy. Such immigration benefits, it is argued, “follow from a reasonable working-out” of basic liberties in a society committed to Rawls’ domestic theory of justice.

Lucas advocates in this extremely brief opinion piece from a symposium titled “Sex for Sale” that mainstream gay rights advocates avoid the one trait that uniquely distinguishes homosexuals from straight people: sex. They are thus inclined to adopt the majority interpretation of pornography as degrading to women (among other bad things). Contradicting this negative portrayal of pornography, Lucas suggests that gay male porn can serve functions that are useful to the gay community and even to wider society. This statement may be unique in the legal literature: Although possessed of a law degree from Russia, Lucas’ authority to speak on this subject flows from his own position as a successful gay porn star and entrepreneur.

This essay considers the constitutional issues raised by the establishment of institutions like the Harvey Milk High School in New York City. The school was established in 1985 to “target students that are being harassed in their community schools because of their actual or perceived sexual orientation or gender identity.” Because it provides a benefit to the exclusion of other, similarly bullied students, it might be vulnerable to claims that its existence violates the Equal Protection Clause of the 14th Amendment. For years gay rights advocates have been pushing to have homosexuality included among the suspect classes meriting heightened scrutiny, thus practically ensuring that laws excluding GLBT persons would fall. The author, however, believes that in the current climate of incremental social changes, “rational basis review may better serve the goals of gay rights advocates than would the application of heightened scrutiny [because] benign programs meant to remedy discrimination are far less likely to survive strict scrutiny than rational basis review.”

Three approaches to applying international materials in judicial decision-making are identified and examined by this author. Each approach is explored in light of the decision in Lawrence v. Texas [539 U.S. 558 (2003)]. The author then considers which approach would be most useful in using comparative analysis in U.S. courts in same-sex marriage cases. Recent changes in the legal status of same-sex couples in other countries are surveyed.

Mezey’s book provides a fairly comprehensive overview of a number of areas of gay and lesbian-related litigation over the past 50 years. The initial chapter provides a general history of gay rights activism, and then is followed by chapters dealing with equality and privacy rights, same-sex marriage, military service, and employment discrimination. Each chapter provides a synopsis of the major cases that have been brought in each area of the law, and explores the progress (or lack thereof) in each. Also included at the end of each chapter is a brief discussion of survey results measuring popular support for the issues discussed in the chapter. Mezey uses this data to discuss whether the judges’ decisions that have been discussed in the chapter can be considered counter-majoritarian or not. She finds that although state supreme court cases may seem to be counter the to majority’s will in a given locale, they often match the majority view in the nation as a whole. In some areas, specifically involving military service, she finds that the courts’ unwillingness to invalidate anti-gay legislation is actually contrary to the feelings of a majority of U.S. citizens.

Many nations that have signed international agreements protecting the rights of sexual minorities (e.g., ICCPR) maintain domestic laws in blatant contradiction to those commitments. The author reasons that such situations leave rights advocates with two choices: either use the international legal obligation as a lever to force local changes, or minimize such pressures to allow "incremental change toward human rights for sexual minorities." Differentiating local laws that predate the treaty, those that predate but have been "reinforced to further violate those obligations," and those that have been newly added since the treaty was signed, she concludes that a mix of strategies will be most effective, but that "in situations where the offending legislation predates the treaty, legal arguments will likely be less effective."

Drawing on a Critical Race Theory analysis, this article examines the role that racial and sexual stereotypes play in sexual orientation asylum cases. The asylum process is outlined, and the racism and homophobia inherent in the requirement of proving one’s homosexuality are exposed. Suggestions on improving the asylum system are provided.

Massachusetts General Law chapter 207, section 11, prohibits the issuance of marriage licenses to non-resident couples who reside in states where their marriages would be void. This article analyzes this “marriage evasion statute” as it applies to same-sex couples. It concludes that the statue violates the Privileges and Immunities Clause of the United States Constitution.

O'Dwyer, a practicing immigration attorney, combines data and practical experience to conclude that "one of the decisive factors in asylum claims based on sexual identity will continue to be the identity of the judge, rather than that of the applicant." All told, "with the exception of the Ninth Circuit, the odds of being successful on a petition for review in a sexual-identity-based protection claim are extremely slim." Immigration courts, in fact, despite reputations to the contrary, "have proven themselves far more receptive to sexual-orientation based protection claims than the federal courts." Given these obstacles and inconsistencies across jurisdictions, the author shares the lessons of his experiences by offering advice on how asylum cases might be successfully argued.

The author begins by considering the appropriate degree of deference the U.S. Supreme Court should use when invalidating a piece of legislation, and determines that they should use a “not unreasonable” standard in their review. He then reviews the key components of the 14th Amendment (due process, equal protection, and privileges and immunities), and concludes that a law will run afoul of the 14th Amendment if it is based on a “demeaning view” of a group of people. While he concludes that most anti-same-sex marriage laws are based on a demeaning view of gay men and lesbians, and thus technically unconstitutional, he feels that the Supreme Court should perhaps proceed cautiously in invalidating those laws in deference to the legislative process, and because invalidation could provoke a backlash that prompts an amendment to the Constitution.

This article addresses the potential impact of Lawrence v. Texas [539 U.S. 558 (2003)] on asylum law. It refutes the assertion made by Professor Michael Scaperlanda, of the University of Oklahoma Law School, that the recent expansion of protections granted to gay asylum seekers will allow gay rights advocates to build a body of precedent useful in constitutional law contexts. The article asserts that lower courts’ interpretations of Lawrence have not been helpful and could slow advances in asylum law.

Rather than a legitimate experiment in the laboratories of the states, federalism offers instead only a stage of historical accident for the thrashing out of the same-sex marriage controversy. Poirier frames the struggle instead as a "kulturkampf," or culture war, a term invoked by U. S. Supreme Court Justice Scalia in his Romer v. Evans dissent (517 U.S. 620, 636 (1996)). The error of the first view is that the state is the proper level of analysis at which to frame the central arguments at issue in marriage adjudication. In contrast, Poirier points out that the "core dynamics are either local and place-based, or are universal and aterritorial." Resort to federalism is therefore "tactical" rather than central, a "beachhead" attempt to make opportunistic arguments. "Where Kulturkampf and cultural identity are concerned, federalism simply is not the main event."

This report is the result of a study conducted by the Institute for Conflict Research. It was commissioned by the Northern Ireland Policing Board (NIPB) and the Office of the Police Ombudsman for Northern Ireland (OPONI). Questionnaires, focus groups, small group interviews and individual in-depth interviews were used to study 233 lesbians, gay men and bisexual’s attitudes and experience with the police in Northern Ireland. The findings include statistics on contacts and perceptions of the police as well as recommendations on reporting, training, recruitment and outreach.

Intersexed persons are born with external genitalia that are fully neither male nor female, creating problems for a system of "allocating rights on the basis of sex," especially in the areas of employment and marriage. Rellis contrasts the treatment of those born intersexed in the United States -- usually triggering emergency "corrective surgery aimed at 'normalizing' external genitalia to fit societal expecations" -- with those in the India, the hijras, a group she describes as "beginning to gain legal recognition in India when they self-identify as a third gender." The "E" mentioned in the title is one example, an official third-gender designation allowed (referring to "eunuch") for documents such as passports. The author urges reforms that ensure "a constitutional right to self-identify outside the gender binary based on the fundamental right to privacy and bodily integrity derived from the Fourteenth Amendment's Due Process Clause," and identifies some statutory efforts such as the International Bill of Gender Rights adopted by the International Conference on Transgender Law and Employment Policy as important first steps.

In 1920 Harvard College venomously pursued students it thought were homosexual. It convened a secret court, "tried" about twenty students, and expelled seven undergraduates. Targeting both gays and friends of gays, Harvard was unsatisfied with expelling the men, but afterward displayed a "relentless commitment to hunting these men down and sabotaging their efforts to finish school, find work, and self-actualize." The harassment continued for decades, as when Harvard tried to derail the 1953 elevation of Joseph Lumbard to the federal appeals court. Several committed suicide as a result. Ronner situates this horrific episode alongside the Salem witch hunts, and the post-9/11 climate to show that "the malevolent forces that propel witch hunts are omnipresent and can spring into action at any time."

"Do nations who do not recognize same-sex marriage have an obligation to recognize same-sex marriage, when such marriages have been consummated abroad?" Yes, replies Samar, if the right to same-sex marriage could be framed as a substantive human right. He defends this proposition by building upon the arguments of Alan Gewirth, whose ethical rationalism posits a supreme "principle of generic consistency" that logically follows from the structure of human agency. The principle states that "everyone should have the same freedom as long as it does not interfere with anyone else's similar freedom," and thus allows for the recognition of same-sex marriage. This approach thus defends same-sex marriage not by special pleading, but because it comports with a more general basis for the recognition of human rights.

The student author argues for the recognition of extraterritorial same-sex marriages by New York under the comity doctrine. Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) serves springboard for this commentary, wherein the New York Court of Appeals denied that the state constitution compelled recognition of same-sex marriages. Hernandez, which dealt with the question of issuing licenses of New York citizens, influenced later cases ruling on the question of recognition of marriages in foreign jurisdictions, such as Funderburke v. New York State Department of Civil Service, 822 N.Y.S.2d 393 (Nassau County Sup. Ct. 2006), Godfrey v. Spano, 836 N.Y.S.2d 813 (Westchester County Sup. Ct. 2007), and Martinez v. County of Monroe, 850 N.Y.S.2d 740 (App. Div. 4th Dep't Feb. 1, 2008), which disagreed over whether Hernandez had changed the law as concerned comity. This outcome is allowed, he says, because "the spirit of New York law safeguards citizens with respect to matters of sexual orientation, rendering the public policy arguments [for exemptions from comity obligations] untenable."

The author makes “two basic points in support of the idea that we should be attentive to, but should not overstate, the institutional dimensions of social change” on gay issues that courts are often accused of promoting. She first examines what exactly “social change” means in this context. If it “means moving the proverbial hearts and minds” of the public, then what she terms “law skepticism” is probably the most defensible position: “the sensibility that anti-discrimination laws cannot themselves change people’s attitudes about the groups such laws” protect. Schacter next inquires into “the significant variability in the realm of gay rights.” In her four-square analysis, both courts and legislatures have each produced both positive change and backlash, and thus it is simplistic to portray any specific relationship as predominating. Rather than seeking universal explanations, she proposes that our attention focus on learning whatever lessons can be gleaned from particular episodes. Transcript of symposium presenters discussing these issues follows the article.

Writing from the perspective of the journal issue's theme of "Law and Morality," Seidman inquires into the over-the-top rhetoric of opponents of gays' rights, such as Justice Scalia, who think that "the case for gay rights is outside the range of reasonable constitutional argument." After demonstrating that a moral argument can be fielded for gay marriage, he returns to the question of why Scalia insists that such defenses are not simply wrong, but illegitimate. Generously taking him at his word that he is not motivated wholly out of pure animus, Seidman interestingly suggests that the dilemma lies in the problematic relationship between law and morality. If "it is true that constitutional questions are inextricably tied to moral questions [as liberal constitutionalism presumes], and if it is also true that moral questions cannot be resolved by reasoned argument [as the debate over gay marriage suggests], then it follows that constitutional questions cannot be so resolved either. But then it would be true that our polity is not founded on principles that all of our citizens are bound to respect and that the ambitions of liberal constitutionalism would have failed." This outcome, he notes, would be "a very big deal" for one such as Scalia, and at least offers an alternative explanation for his lashing out "at people who, he perceives, are attacking the very foundations of the Republic, not to mention his self-conception of how he performs his job."

The author, legal counsel for the Becket Fund for Religious Liberty, reads gains for gays regarding same-sex marriage as a threat to religious liberty. "Because of the undeniable centrality of marriage to civic and religious life, conflicts will inevitably arise where the legal definition of marriage differs dramatically from the religious definition." As his essay illustrates, however, the potential challenge to religious institutions does not concern governmental regulation of religious beliefs, but only areas of secular activity engaged in by religious institutions (e.g., employment, housing, and public accommodations). While no religion should be coerced into changing its private beliefs, neither is it obvious that any organization should be free to discriminate in the public sphere whatever its claimed motivation, especially when supported by governmental benefits such as tax exemptions. Severino offers no justification to support such a radical extension of religious protection.

The author begins with a brief discussion of the federal Defense of Marriage Act, and the Full Faith and Credit Clause of the U.S. Constitution, and finds that neither is dispositive on the issue of whether a same-sex marriage in one state must be recognized in another. He then analyzes the New York state case In re May’s Estate [148 N.E.2d 4 (N.Y. 1953)] to see whether a choice-of-law argument might help proponents of same-sex marriage to advance their claims. While the decision in May’s Estate would seem to do so, the author finds the case to have been improperly decided. He concludes, however, that the Equal Protection, Due Process, and Establishment Clauses of the U.S. Constitution would require a state to recognize same-sex marriages performed in another state.

Skow draws out the inherent tensions in Missouri law that, on the one hand, in 1999 included sexual orientation in its Hate Crimes Act, yet in 2004 passed a state constitutional amendment banning same-sex marriage. Besides the seeming general inconsistency concerning the state’s attitude toward GLBT persons, the author theorizes that the two taken together “may provide a basis for an Equal Protection challenge if the same-sex marriage prohibition amendments inspire the animus that hate crime statutes seek to prevent.”

The gay-themed contribution to a theme issue devoted to Loving v. Virginia, 388 U.S. 1 (1967), Smith offers a critique of the "same-as mantra as a potential organizing strategy used by white mainstream LGBT organizations in their attempt to build meaningful coalitions with black people and sway public opinion." While useful in some contexts (e.g., legal briefs), sameness arguments, she points out, "are not the optimal approach to an interracial dialogue on LGBT issues." As an alternative, she suggests looking to the superordinate goals in correcting the "overarching structures of oppression" that the two movements share. As to examples she offers "recognizing the harms to black LGBT people," and "expanding the concept of 'family'."

This article reviews 14 homicide cases in California from the years 1949 and 2000 that involved a “homosexual advance” defense. The author expostulates “four classic scripts of homosexuality” – the effeminate, the sick or mentally ill, sexually predatory, and violent, and considers how each figured in the homicide cases involving the homosexual advance defense. Finally, the prevalence of the four scripts in the popular press over the same time period is examined, and the author concludes that the scripts have survived longer in the legal setting than in the popular culture.

Strasser intends this article as a corrective to those who interpret Lawrence v. Texas [539 U.S. 558 (2003)] as a simple incorporation of John Stuart Mill’s “harm principle.” ON LIBERTY’s harm principle states that “the only conduct for which an individual is appropriately subject to sanction by either the state or society is conduct which is ‘other-affecting;’ that which only affects himself is not appropriately subject to external punishment.” Strasser argues that viewing Lawrence as embodying this principle follows from both a “watered-down” understanding of the harm principle itself, and a narrow reading of Lawrence to justify the claim that the decision “incorporates this modified version.”
“It is inappropriate to characterize Lawrence as a straightforward incorporation of the harm principle both because in some respects it does more than the harm principle [by assigning positive value to GLBT relationships], and because in other respects it does less than the harm principle [by protecting fewer liberties than the harm principle requires, such as prostitution].”
The erroneous reduction of Lawrence to the harm principle reinforces but does not wholly account for subsequent decisions (Lofton v. Secretary of Florida Department of Children and Family Services [358 F.3d 804 (11th Cir. 2004)], L.A.M. v. B.M. [906 So.2d 942 (Ala. 2004)], Kansas v. Limon[83 P.3d 229 (Kan. Ct. App. 2004)]) that have disadvantaged GLBT persons “not because of a misreading of Lawrence as simply an incorporation of Mill’s harm principle into 14th Amendment jurisprudence, but because the courts have been making more serious and obvious mistakes in their interpretation of local and constitutional law.”

Strasser ventures onto intellectual white water in this piece due to its controversial topic. Not that the reader would realize this from the seemingly innocuous title. His argument is first that those who would dismiss same-sex marriage by invoking the slippery slope to polygamy argument err by blurring distinguishable activities. Reasonable enough. Hackles will rise in the next sections which point out that, even so, "current plural marriage bans are not narrowly tailored enough to withstand the close scrutiny that should be given to statutes that target religious practices." In other words, while gay marriage does not lead to polygamy, the dispassionate reevaluation of the grounds on which both those practices are prohibited leads to the conclusion that "the Free Exercise Clause requires an exception be recognized for some same-sex marriages and for some plural marriages involving consenting adults." His thesis should be taken seriously by anyone interested in what the law actually requires, rather than merely the legal supports for the things they prefer.

"Rights talk," writes this author, are a double-edged sword. Those claiming rights (in this case, for same-sex couples to adopt) are often met those opponents also claiming rights (Catholic adoption agencies seeking an exemption from a requirement to consider same-sex couples). Such conflicts show the inherently rhetorical nature of the claim to rights, which constitutes Stychin's primary point. The idea of the right, from this perspective, one upon which much of gay activism depends, from this perspective becomes less of a trump than merely one device among many, a perhaps necessary but not sufficient claim in the public marketplace since it is so easily parried by countervailing claims framed in equivalent terms.

A surprisingly balanced presentation of the range of conservative arguments, not all of which will, of course, please gay readers. Jonathan Rauch begins by making a Burkean argument for incrementalism which balances a respect for tradition with acceptance of "gradual, bottom-up social evolution." For him, "the question is not whether same-sex marriage is a conservative policy, but whether it is being implemented in a conservative way." Jesse Choper and John Yoo (of torture memo fame) next argue that while under "existing judicial interpretation, neither the Due Process Clause nor Equal Protection Clause creates a federally-protected right of individuals of the same sex to marry when prohibited by state law," which they do not think states should do. Robert Nagel would unjustly reverse the burden of proof to show that same-sex couples are entitled to the public benefits of marriage. Rather than demanding the state to show why they should be excluded, he believes that "proponents of homosexual marriage must establish ... is that homosexual couples are as entitled as heterosexuals to the public recognition and respect that is an aspect of these legal entitlements." The best article in the series is that by Gerard Bradley. He identifies three liberal "mistakes" put forward in defense of same-sex marriage: that "the law of marriage does not rest upon a view of marriage as, in some basic or essential way, 'procreative'; that biological parents provide the optimal setting to raise children, and that "the law must recognize same-sex relationships as marriages because equal respect for the self-constituting choices of homosexuals and lesbians requires it." The quality of this argument comes not because because he is right -- indeed, each of his three arguments can be turned aside rather easily -- but from the lack of evident disdain for gay men and lesbians and the seriousness of his discussion. Both of these admirable qualities are missing in the piece by Charles Murray, best known for The Bell Curve. He states that because "marriage's role as an institution depends upon its function of perpetuating culture and civilization through the birth and nurturing of children," and therefore "gay marriage is an oxymoron." He is at least consistent in that for similar reasons he would deny marriage to sterile heterosexuals. David Frum wonders what the big deal is, since gay couples have not rushed to get married in those jurisdictions where it has become available. Dale Carpenter provides the final formal presentation, in which he points out that the Burkean conditions for social change are being met, and that, as gay and lesbian couples "are saying 'yes' to a traditionalizing institution...the question for conservatives at the end of the day is, why can't they take 'yes' for an answer?" The transcript of the symposium Q&A is fairly unremarkable, although it did allow one antigay spokesperson to show how unnuanced prejudice can be. When rhetorically asked, "But if the question is, 'Does somebody who has doubts about gay marriage, therefore become hostile to all efforts at being fair and receptive to the more particularized problems gay face?'", Teresa Stanton Collett pipes up, "Perhaps I might."

The author discusses the context of a possible sexual orientation discrimination ordinance in Hong Kong. She concludes that the real danger in protecting gay men and lesbians from discrimination is in the way such prohibitions would restrict expressions of anti-gay prejudice. Such expressions must be protected, she feels, because they are often supported by “scientific findings showing the harms of homosexual conduct not only to the society but also to those engaging in such practices.”

Coming from a law professor whose sole claim to fame rests on his vigorous and varied attacks on gays' rights, this particular article is remarkably restrained. The basic question he asks is whether U.S. ratification of the Hague Convention on Intercountry Adoption contains any hidden requirements to allow adoption by gay men and lesbians, something he would view as a regrettable outcome. His analysis suggests -- not least because at the time of the HCIA's writing (between 1988 and 1993), the social landscape concerning homosexuality was markedly different than it stands today -- the treaty contains no such stipulation, and in fact leaves much of the details about adoption to the local law of the countries involved. While this result is perhaps not as positive as gay couples would like, neither is it as negative as the author would prefer, a cause for some encouragement.

Are states required by the U.S. Constitution to recognize an adoption degree in another state regardless of the parents' sexual orientation. At least one state -- Oklahoma -- and one high-profile commentator -- Lynn Wardle -- say no, that, in the latter's words, "in many situations nonrecognition of lesbigay adoption decrees would be proper and permissible." Wasserman examines four different rationales to support such a conclusion, finding all to be flawed. Wardle's antigay posture, she argues, is contrary to "both Supreme Court precedent and an overriding policy favoring permanency in parent-child relationships."

This writer maps out the tensions inherent within the First Amendment’s protection of antigay hate speech, on the one hand, and, on the other of the expressive speech of LGBT persons themselves. He opines that these two threads are not independent: hate speech often occurs more frequently in response to expressive speech. The article concludes with the “normative proposal that expanded protection of LGBT expressive speech should lead to increased restrictions of homophobic hate speech.”

This case note was written in the interim between the lower court ruling in Varnum v. Brien, No. CV5965 (Iowa Dist. Ct. Aug. 30, 2007), which upheld the right of six same-sex couples to be issued marriage licenses, and the decision by the Iowa Supreme Court upholding that outcome (763 N.W.2d 862 (Iowa 2009)). Wieland hoped that a decision using the rational-basis test -- the lowest level of scrutiny in equal protection analysis -- would "shift the debate away from the divisive issue of marriage back to human equality -- from 'Do homosexuals deserve the traditional privilege of marriage?' to 'How should we provide equal access to government benefits and protections to all people, including homosexuals?'" The Iowa court has in the past employed a "rational-basis-with-bite test," or a "bare animosity review," and the authors believes that this would be the more appropriate path in the present instance. History has overtaken his arguments, however, as the court chose to uphold the right to same-sex marriage by relying upon an intermediate level scrutiny which requires that "a statutory classification must be substantially related to an important governmental objective." This standard the state could not satisfy.

The Matthew Shepard Act seeks to amend the federal hate-crime law to include sexual orientation and gender identity. Although the act passed the Congress in 2007, then-President Bush threatened to veto the Defense appropriations bill to which it was attached if it came to his desk including that section. Hopes are high that the bill will become law early in the Obama administration. Woods argues that the constitutional authority to pass such a law is to be found not in the Commerce Clause -- an increasingly sketchy basis on which to exert Congressional power -- but in the Fourteenth Amendment's Section 5 enforcement power. He reaches his result by pointing out that the effect of the hate crimes is to prevent victims "from reporting their crimes to the police, influence police officers not to categorize or investigate their crimes as bias crimes, and prevent prosecutors from prosecuting their crimes as bias crimes," the remedy for which falls to Section 5 "to ensure a right of access to the courts."

The author of this article compares the status of same-sex marriage in Canada vs. England and Wales. In response to court challenges, Canada passed the Civil Marriage Act in 2005, which granted same-sex couples the same right to marry as opposite-sex couples. In England and Wales, in contrast, Parliament passed the Civil Partnership Act in 2004, which gave same-sex couples most, but not all, of the same rights as opposite sex couples. The author considers the factors that gave rise to the differing results in England and Canada, and also considers a number of arguments as to why the UK legislation violates the Human Rights Act of 1998.

The author considers the problem of ascertaining, from the particular view of Israeli law, parenthood of a child who was conceived by the egg of one lesbian partner being carried to term by the other. Because current law "cannot provide an adequate response," she proposes legislative changes that will allow recognition "through appearance before a registry official." Until such time, however, the Family Court will have jurisdiction over this question.

Zaske describes the history and current content of U.S. immigration laws which impact homosexuals. Zaske goes on to discuss the Permanent Partners Immigration Act [H.R. 3006, 109th Cong. (2005)]. A comparative analysis of immigration laws from other countries is included in Zaske’s analysis of how PPIA may be implemented.