http://www.lgbtbib.org/ 2010-07-07T13:21:39-06:00 http://www.lgbtbib.org/2010/07/horizontal_versus_vertical_com.html This article discusses the nature and the role of compromise and incrementalism in the LGBT rights movement. Wilson asserts that horizontal rather than vertical compromise is the only morally and pragmatically acceptable method of compromise. Compromise is vertical if it leaves out the interests of a movement’s well-defined constituent groups (e.g. compromise legislation that excludes gender identity protection). A compromise is horizontal when legislators or activists scale back the breadth or depth of their demands (e.g. civil unions versus full marriage recognition). This article provides good blueprint for strategies for the LGBT civil rights struggle. Wilson opts for a clear and concise style, instead of using the jargon-laden language that often characterizes writings on theory. Sometimes, the footnotes could use more specific citations to cases, but overall the article contains good citations to caselaw and other writings on theory and movement methodology.

]]> bibliography 2010-07-07T13:21:39-06:00 http://www.lgbtbib.org/2010/07/lesbians_gays_and_people_livin.html Anderson, the HIV project director at Lambda Legal Defense, provides an excellent account of the difficulties encountered by LGBT and HIV positive men and women who seek the use of assisted-reproductive technologies (“ART”). These barriers include restrictions on sperm donation by gay and HIV positive men, denial of insurance coverage for ART, and denial of ART based on the provider’s religious beliefs or biases. This article provides a summary of the various types of ART and defines the basic terminology involved. In addressing the barriers to ART, Anderson makes reference to federal disability law, federal constitutional rights, FDA regulations and nonbinding recommendations, state laws relating to disability and insurance policies, and federal and state caselaw. The last part of the article describes various legal strategies to challenge the barriers LGBT and HIV positive men and women face when attempting to use ART. In the discussion of legal strategies, Anderson gives an account of recent caselaw where Lamda Legal has represented litigants.

]]> bibliography 2010-07-07T13:18:48-06:00 http://www.lgbtbib.org/2010/07/the_heart_of_this_book.html The heart of this book is an exhaustive study of the two sodomy cases, Bowers v. Hardwick (1986) and the case that overruled it, Lawrence v. Texas (2003). Richards emphasizes the role of the swing votes in the two cases: Justice Powell, whose change of mind resulted in the ruling upholding the Georgia sodomy law in Bowers, and Justice Kennedy, who wrote the compelling majority opinion in Lawrence. The book also considers the abortion and contraception cases that established the privacy doctrine on which Lawrence is grounded, and the implications of Lawrence for other issues, particularly same-sex marriage. A final chapter considers the nature of judicial review and places Lawrence and the struggle for LGBT rights in the context of other landmark cases.

]]> bibliography 2010-07-07T13:16:39-06:00 http://www.lgbtbib.org/2010/07/this_balanced_collection_of_es.html 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.

]]> bibliography 2010-07-07T13:13:16-06:00 http://www.lgbtbib.org/2010/07/morse_v_fredericks_new_perspec.html 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.

]]> bibliography 2010-07-07T13:10:34-06:00 http://www.lgbtbib.org/2010/07/taking_the_hate_out_of_hate_cr.html As a category, hate crimes have had a hard row to hoe on the way toward acceptance by the general citizenry. The enhanced punishments attached to bias crimes are, however, argued to be worth any likely costs due to the broad and detrimental social impacts of allowing discrete groups to be targeted for violence. Backgrounding this thesis is that attackers act out of an antipathy toward the minority group, and even that a dominant motivation for the attack is to communicate this animosity to other members beyond the one actually attacked. Woods would contrast this prototypical hate crime scenario with another, one in which minority groups are targeted not out of animus, but out of convenience. "Consider a man who robs gay men cruising in public parks because he believes homosexual victims who seek anonymous public sex are less likely to report the crimes. Or, imagine a man who is looking to prove his masculinity to his friends and chooses to assault an Amish man because he believes that the Amish will not fight back by virtue of the pacifist commitments. Finally, consider a white man who is not racist, but only robs black men and women because he believes that racist attitudes will prevent the local police from investigating the crimes." These criminals do not themselves hold the hate typically underpinning bias crimes, but are aware of its existence and take advantage of that fact in planning their own misdeeds. The question is whether these, too, should be liable for the enhanced sentences meted out to prototypical perpetrator of hate crimes? Woods says, yes, and then attempts to justify this position. One could wonder, though, whether expanding the category to embrace these types of crimes could not weaken the rationale for the hate crime category as a whole.

]]> bibliography 2010-07-07T13:07:52-06:00 http://www.lgbtbib.org/2010/07/a_comparative_perspective_on_i.html Those wishing a compilation of brief descriptions of the means by which many countries -- "industrialized democracies" -- handle the issue of same-sex partner immigration will find this an especially helpful piece. The author's broader objective is to use the experience of these comparable states to suggest workable approaches for the United States. He finds particularly instructive their successes "de-coupling the issues of same-sex unions and same-sex partner immigration" (pun intended, one wonders?).

]]> bibliography 2010-07-07T13:05:26-06:00 http://www.lgbtbib.org/2010/07/from_slavery_to_samesex_marria.html As the story is told, we are today burdened with the federal DOMA law, as well as the states' mini-DOMAs, in large measure because of the rhetoric surrounding the Hawaii Baehr decision, 851 P.2d 44 (Haw. 1993). Advocates argued that should Hawaii begin to recognize same-sex marriages, other states would be forced to recognize them through the Full Faith and Credit Clause of the Constitution. Wardle argues that this belief is unfounded. Reviewing earlier instances of "controversial domestic relations" (i.e., slavery, polygamy, among others), he finds the the pertinent litigation turned not on comity under full faith and credit, but rather the forum's sovereign domestic relations policy. One could use his result to then argue that DOMA was an empty hysterical gesture, but Wardle does not see this obvious implication of his study.

]]> bibliography 2010-07-07T13:02:51-06:00 http://www.lgbtbib.org/2010/07/samesex_partners_in_hungary_co.html This brief article offers a cogent summary of the legal status available to same-sex couples in Hungary. Since 1996 the "laconically" regulated domestic partnerships were opened to gay relationships. Registered partnerships became available in 2009, which offer many of the rules of marriage to apply to same-sex couples as well.

]]> bibliography 2010-07-07T13:00:08-06:00 http://www.lgbtbib.org/2010/07/issues_in_estate_planning_for.html In her poignant introduction, Jennifer L. Levi recounts the kinds of tragedies that can befall same-sex couples when one partner becomes mental incapacitated, or dies. The need for the kind of wise legal counsel offered by these chapters is thus well established. A. Spencer Bergstedt provides a "first-of-its-kind practical guide," providing "key legal analysis for conducting estate planning for transgender clients." A similarly practical survey of the legal terrain, this time focusing on the special issues of aging same-sex couples, is offered by Aimee Bouchard and Kim Zadworny, both also, like Bergstedt, practicing attorneys rather than academics. The final contribution to this collection, from Patricia Crozier, offers some of the "nuts and bolts" fundamentals to be kept in mind by all LGBT families.

]]> bibliography 2010-07-07T12:54:25-06:00 http://www.lgbtbib.org/2010/07/thirty_years_after_anita_bryan.html For those of a certain age, Anita Bryant encapsulates the tenor of an era, the cusp between the days when homosexuality was a disgraceful secret, and the emergence of the possibility of gay identity as a positive aspect of the healthy individual. This issue presents the proceedings of the Nova Southeastern University’s Eleventh Annual Leo C. Goodwin, Sr. Symposium, in which, from the perspective of thirty years later, the impact of her “crusade” is examined. Chairs Anthony Niedwiecki and William E. Adams recount the basic historical events, from Bryant’s successful 1977 efforts to repeal Dade County’s antidiscrimination ordinance that include protections for sexual orientation, to examples of the echoes of that campaign still impacting lives today. Suzanne Goldberg focuses “on the lack of legal justification for laws that discriminate based on sexual orientation,” forcing courts to rely instead on “intuition and morals based justifications.” David Mixner spoke on his many memories of activism, while Matt Foreman writes that, despite the significant advances in many areas of social progress, “we remain stagnant in our moral and political attitudes toward LGBT people and change is desperately needed.” The final symposium presenter, Gene Robinson, whose ordination as an openly gay Episcopal Bishop open schism in that denomination, discussed the misuse of Biblical passages by Christian opponents to support their antipathy toward LGBT people. As for Bryant, while her movement left enduring scars on Florida law, she fared poorly. Rejected by her fundamentalist base after her 1980 divorce, she suffered a financial setbacks resulting in bankruptcies in 1997 and 2001. While no longer seeking the spotlight, recent interviews have indicted no softening of her antigay beliefs.

]]> bibliography 2010-07-07T12:47:17-06:00 http://www.lgbtbib.org/2010/07/rights_wrongs_morality_in_the.html A transcript of proceedings moderated by Chai Feldblum, offers a casual conversation on "morality in the marriage equality debate and the question of its role in conceptualizing same-sex marriage." An obvious participant is Carlos Ball, who authored a book on precisely this topic. Fellow discussants include Suzanne Goldberg, Mark Chopko, Amy Wax, and Jonathan Rauch. All participants support basing social policy on the perceived morality of same-sex relationships, a position that, on its face, would delight conservatives firmly convinced that morality provides a clear, negative response to the question of same-sex marriages. The discussion would have benefited from a distinction between ethics and morality, for while it is fruitless (as Rawls argued) to try to base public policy on individual conceptions of the good, that does not mean that laws cannot be based on some recognition of duties owed to other citizens (e.g., the equality principle that Ball would avoid).

]]> bibliography 2010-07-07T12:33:39-06:00 http://www.lgbtbib.org/2010/07/an_assessment_of_the_law_schoo.html The authors analyze date from three sources: a "Climate Survey" administered to 3,205 first year students at 37 law schools; a second survey targeting open LGBT law students, which netted 302 responses from 79 different law schools; and narratives collected from focus groups with eleven LGBT law student organizations across the country. While conditions for LGBT law students have improved since similar research ten years earlier, "this group still encounters substantial discrimination on law school campuses and in law school classrooms. This discrimination may result from overt acts, thoughtlessness, and/or neglect on the part of various actors in law school communities."

]]> bibliography 2010-07-07T12:29:34-06:00 http://www.lgbtbib.org/2010/07/gods_gays_analyzing_the_samese.html The present student work offers another in a growing line of well-intentioned, but ultimately misguided discourses on same-sex marriage. Schuman argues that, because religious believers oppose same-sex marriage, the best thing to do would be to separate "the institutions of civil and religious marriage such that religious groups can continue to grant or refuse to officiate marriage ceremonies based on their beliefs, and government can get out of the business of granting religious marriage and instead focus on granting equal rights to all of its citizens." The errors in this line of thinking are several, including the following. (1) marriage has always been a fundamentally social, not religious institution; religions have merely been favored as one vehicle for forming this legal bond. Consequently, if there is to be a parting of the ways, the term "marriage" should stay where it originally belonged, with secular authorities, and religions can form their own "civil unions" that trigger no legal or public consequences. Supporting this same outcome -- that government-sanctioned relationships should be "marriages," and religious celebrations merely "unions," is that the empirically observed social and psychological benefits follow from being "married," not from being "unioned," which is why these two states shall always represent unequal statuses regardless of whether they carry the same legal rights and benefits. To make religions the sole dispensers of this proven good would be to consign same-sex relationships to a permanent second-class standing.

]]> bibliography 2010-07-07T12:26:42-06:00 http://www.lgbtbib.org/2010/07/the_connecting_theme_of_nussba.html The connecting theme of Nussbaum's accessible and challenging text is the contrast between the position expressed by Lord Patrick Devlin that "when an average member of society...feels disgust at the thought of some behavior that does not directly affect him, we may conclude that this conduct is a 'vice so abominable that its mere presence is an offence.'" In other words, the rights of a minority may legitimately be limited if the majority is repulsed by the thought of contact with that minority. Devlin's position is contrasted with that earlier expressed by John Stuart Mill, that society can only limit the liberty of citizens when their conduct "interferes with nonconsenting others." While this contrast describes multiple areas of social regulation -- prostitution, gambling, alcohol -- Nussbaum uses it to explain the historical treatment of homosexuals in American society from Bowers to Lawrence and Rohmer, with a look toward the future of same-sex marriage, a history which she describes as a movement from pure Devlinism toward one reflective of a more Millian perspective.

]]> bibliography 2010-07-07T12:24:25-06:00