Home | Author/Section results

Allen, Michael P., The Underappreciated First Amendment Importance of Lawrence v. Texas. 65 Wash. & Lee. L. Rev. 1045-1070 (2008).

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.”

HeinOnline | LexisNexis | Westlaw | SSRN (free)

More on: hate speech, Lawrence, morality, obscenity

Bessel, Anna L., Preventing Hate Crimes Without Restricting Constitutionally Protected Speech: Evaluating the Impact of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act on First Amendment Free Speech Rights. 31 Hameline J. Pub. L. & Pol'y 735- (2010).

Bilford, Brian J., Harper's Bazaar: The Marketplace of Ideas and Hate Speech in Schools. 4 Stanford J. Civil Rts & Civil Lib. 447-473 (2008).

Bilford outlines the jurisprudential rules of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Under Tinker a student's First Amendment Free Speech Rights can be limited whenever the speech "materially disrupts classwork or involves substantial disorder," or whenever it conflicts with the "rights of other students to be secure and to be let alone." While the first has been substantially litigated, he describes the second as underused and ambiguous. The decision handed down in Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006), addresses this gap. The case concerns the censored speech of a student who wore to school a shirt carrying the message, "Homosexuality is Shameful." The author discusses the court's reasoning, and explains his view that "this exception is an attempt to distinguish the school setting as one in which the freedom to espouse hate speech must be tempered because its student targets are both captive and vulnerable."

HeinOnline | LexisNexis | Westlaw | SSRN (free)

More on: Harper, speech, Tinker

Brown, Jennifer Gerarda, Peacemaking in the Culture War Between Gay Rights and Religious Liberty. 95 Iowa L. Rev. 747- (2010).
LexisNexis |

More on: religious liberty

Brownstein, Alan, Gays, Jews, and Other Strangers in a Strange Land: The Case for Reciprocal Accommodation of Religious Liberty and the Right of Same-Sex Couples to Marry (Symposium: The Future of Same-Sex Marriage). 45 U.S.F. L. Rev. 389- (2010).
HeinOnline | LexisNexis |

More on: religious accommodations, religious liberty, same-sex marriage

Calvert, Clay, and Robert D. Richards, Gay Pornography and the First Amendment: Unique, First-Person Perspectives on Free Expression, Sexual Censorship, and Cultural Images. 15 Am. U. J. Gender Soc. Pol'y & L. 687-730 (2007).

The thoughts and opinions of two leading players in today’s gay pornography industry are set forth and analyzed on the topics of free speech, censorship, obscenity law, and the political and social forces that impact gay pornography today. This Article also describes their views about the values and functions of gay pornography, as well as the business and economic aspects of the industry.

HeinOnline | LexisNexis | Westlaw |

More on: constitutional law, free speech, obscenity, pornography

Dent, George W., Jr., Civil Rights for Whom?: Gay Rights Versus Religious Freedom. 95 Ky. L.J. 553-647 (2007).

In this article Dent adds to his established list of anti-gay writings. Beginning with claims that “most people have an innate distaste for homosexuality” and that “heterosexuality can be considered intrinsically better,” Dent allows that gay men and lesbians “should be free from harassment and physical abuse,” and that in at least “some cases” they should perhaps not be the object of discrimination. Those familiar with Dent’s work will find few surprises here: Gays unqualified bad, anti-gay religion unqualified good.

HeinOnline | LexisNexis | Westlaw | SSRN (free)

More on: Dent, Religion

Harvard Law Review, First Amendment - California Supreme Court Holds that Free Exercise of Religion Does Not Give Fertility Doctors Right to Deny Treatment to Lesbians. - North Coast Women's Care Medical Group, Inc. v. San Diego County Superior Court, 189 P.3d 959 (Cal 2008). 122 Harvard L. Rev. 787-794 (2008).

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.

LexisNexis | Westlaw |

More on: California, conscience, Employment Div., insemination, religion, Unruh Civil Rights

Jahanian, Arash, True Endorsement: A Critical Race Approach to Bans on Same-Sex Marriage. 9 Georgetown J. Gender & L. 237-268 (2008).

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."

LexisNexis |

More on: Establishment Clause, Jahanian, O'Connor

Klein, Laura K. , Rights Clash: How Conflicts Between Gay Rights and Religious Freedoms Challenge the Legal System. 98 Geo. L. J. 505-533 (2010).

Klein examines Christian Legal Society’s (CLS) lawsuits seeking exemptions from public universities’ non-discrimination policies. CLS has adopted the position that being forced to acknowledge gay rights is a violation of their own religious rights. The author examines how this unique battle of rights rhetoric – gay rights versus religious rights—leaves neither side satisfied, nor does it help resolve the larger legal issues. She examines the pros and cons of resolving this conflict within the judicial system, through legislation, and through extra-institutional approaches such as ballot initiatives and private dispute resolution. Klein concludes that it is important the dispute be resolved within the legal system, but ultimately the best result may not leave a clear winner or loser.

HeinOnline | LexisNexis | Westlaw | Georgetown Law Journal (free)

More on: religious liberty, rights

Knight, Dean R., “I'm Not Gay—Not That There's Anything Wrong with That!”: Are Unwanted Imputations of Gayness Defamatory?. 37 Vict. Univ. of Wellington L. Rev. 249-279 (2006).

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.”

Westlaw |

More on: defamation, defamatory per se, Knight

Laycock, Douglas, Anthony R. Picarello, Jr., and Robin Fretwell Wilson, . Same-Sex Marriage and Religious Liberty: Emerging Conflicts. Rowman & Littlefield. (2008).

This balanced collection of essays considers the growing conflicts between the rights of same-sex couples and the religious liberty of opponents of same-sex marriage, that arise under, e.g., antidiscrimination laws, tax exemptions for religious entities and healthcare provider conscience policies. Including both marriage equality supporters (Chai Feldblum) and opponents (Charles Reid), contributors and editors consider how such conflicts might be avoided and, when unavoidable, how they may be resolved. Alternative solutions range from one in which the same-sex couple usually prevails to those that insist same-sex marriage must not be recognized; others seek a compromise aimed at balancing the conflicting interests and preserving the dignity of persons on both sides. This book provides an enlightening exchange of views in a debate that will become more prominent as the fight over marriage continues.

More on: liberty, religion

Lucas, Michael, On Gay Porn. 18 Yale J. of Law & Feminism 299-302 (2006).

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.

LexisNexis | Westlaw |

More on: Lucas, pornography

Powers, Courtney A., Finding LGBTs a Suspect Class: Assessing the Political Power of LGBTs as a Basis for the Court's Application of Heightened Scrutiny. 17 Duke J. Gender L. & Pol'y 385- (2010).

Severino, Roger, Or for Poorer? How Same-Sex Marriage Threatens Religious Liberty. 30 Harvard J. L. & Pub. Pol'y 939-982 (2007).

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.

HeinOnline | LexisNexis | Westlaw | Chas. LiMandri Offices (free)

More on: marriage, religion, Severino

Southerland, Abigail Jones, The Tug of War Between First Amendment Freedoms and Antidiscrimination: A Look at the Rising Conflict of Homosexual Legislation. 5 Regent J. Int'l L. 183-201 (2007).

A short student note equating homosexuality with bestiality and polygamy as part of an argument that antidiscrimination laws will inevitably undermine the First Amendment free speech clauses. Concluding that “considering almost any group a discriminated class is dangerous,” the author draws heavily upon foreign hate speech enactments from which she analogizes what negative outcomes could arise within the U.S. jurisdiction should gay men and lesbians achieve basic protections under the law.

HeinOnline | LexisNexis | Westlaw |

More on: Bestiality, First Amendment, Polygamy

Strasser, Mark, Marriage, Free Exercise, and the Constitution. 26 L. & Inequ. 59-108 (2008).

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.

LexisNexis | Westlaw | SSRN (free)

More on: Free Exercise Clause, polygamy, same-sex marriage

Ward, Haven, "I'm Not Gay, M'kay?": Should Falsely Calling Someone a Homosexual Be Defamatory?. 44 Ga. L. Rev. 739-767 (2010).

Celebrities and non-celebrities alike have used the court’s to sue for defamation if someone has labeled them as gay to a third-party against their wishes. However, allowing such suits to proceed assumes that being gay is harmful. After an analysis of defamation, Ward argues that the individual harm of being called gay to a third-party is outweighed by countervailing public policy interests. Ward’s makes his case by analogizing the issue to racial defamation claims. It is used to be defamatory per se to refer to someone who is white as black. As social mores and policy changed in society, the courts changed course: misidentifying someone as black was not defamation as a matter of law because such a theory of recovery sanctioned discrimination and, therefore, contravened public policy. Similarly, recognizing gay defamation claims as actionable condones discrimination and relegates gay men, lesbians, and bisexuals to second-class status.

LexisNexis | Westlaw |

More on: defamation, defamatory, Lawrence, misidentification, per quod, per se, torts

Weiss, Jillian T., The First Amendment Right to Free Exercise of Religion, Nondiscrimination Statutes Based on Sexual Orientation and Gender Identity, and the Free Exercise Claims of Non-Church-Related Employers. 12 Fl. Coastal L. Rev. 15- (2010).
LexisNexis |

More on: compelling interest, employer exemption, employment discrimination, First Amendment, free exercise of religion, RFRA, Smith

White, Quinn, Protecting Homosexual Rights: A Contradiction in First Amendment Jurisprudence. 4 First Amend. L. Rev. 377-402 (2006).

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.”

HeinOnline | LexisNexis | Westlaw |

More on: expressive speech, First Amendment, hate speech, speech, White

Woods, Jordan Blair, Morse v. Frederick's New Perspective on Schools' Basic Educational Missions and the Implications for Gay-Straight Alliance First Amendment Jurisprudence. 18 Colum. J. Gender & L. 281-321 (2008).

School systems are not always receptive to the proposed creation of a gay-straight alliance (GSA). While true motivations can draw from a broad conservative antipathy toward the needs of gay people generally, and of young students particularly, the expressed opposition often invokes some sweeping argument that such an organization would "interfere with the school's educational mission." Woods writes that recent developments in Supreme Court jurisprudence, especially Morse v. Frederick, 551 U.S. 393 (2007), the notorious "Bong Hits 4 Jesus" case, may have weakened the effectiveness of that line of argument. The reasoning goes something like this: The existing line of school speech cases had marked a trend of increasing deference to school authorities to limit student speech; Morse offered an opportunity to expand that deference, which often allowed authorities to make their own judgments about what was appropriate, but failed to take this step. Instead, it inquired into the reasonableness of the school's interpretation of the student speech as advocating illegal drug use, and thus marks a more objective standard than had been evolving previously, and fosters a more receptive climate for student plaintiffs to argue that denial of permission to form GSAs represent an unconstitutional restriction of student speech. I, at least, remain unconvinced that the author's reading of the perhaps the holding, and certainly the wider impact of Morse, is accurate. Certainly when Justice Thomas can concur in the Morse opinion, and express his own that students lack any First Amendment speech rights at all, it is hard to find in Morse a helpful declaration of expanded student speech rights.

HeinOnline | LexisNexis | Westlaw | SSRN (free)

More on: Gay-Straight Alliances