Sexuality, gender, and the law / by William N. Eskridge, Jr., Nan D. Hunter.
2011
KF9325.A7 E84 2011 (Map It)
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Title
Sexuality, gender, and the law / by William N. Eskridge, Jr., Nan D. Hunter.
Published
New York, N.Y. : Foundation Press Thomson/West, 2011.
Call Number
KF9325.A7 E84 2011
Edition
Third edition.
ISBN
9781599414126 (hbk.)
1599414120 (hbk.)
1599414120 (hbk.)
Description
xxxix, 1,162 pages : illustrations ; 27 cm.
System Control No.
(OCoLC)728086729
Bibliography, etc. Note
Includes bibliographical references and index.
Series
Record Appears in
Added Author
Table of Contents
Introduction
v
Acknowledgments
ix
Table of Cases
xxix
ch. 1
Regulation of Sexuality and Gender Before Casey and Lawrence
1
1.
Contraception, Abortion, and the Privacy Right
3
A.
Feminist Foundations of the Right to Sexual Privacy
4
New York v. Sanger
5
The Early Birth Control Movement
6
Paul and Pauline Poe et al. v. Abraham Ullman
9
Estelle Griswold et al. v. Connecticut
12
Notes on Griswold and the Right of Sexual Privacy
14
Foundational Critiques of the Right of Privacy
17
Robert Bork, "Neutral Principles and Some First Amendment Problems"
18
B.
The Expanding Right of Sexual Privacy
19
Thomas Eisenstadt v. William Baird
20
Notes on Eisenstadt and the Expanding Privacy Right
24
C.
The Right to Choose Abortion
25
Jane Roe v. Henry Wade
26
Notes on Roe and the Right to Abortion
28
2.
The Era of Sodomy Law
30
A.
Sodomy: "The Utterly Confused Category"
30
Note on Medicalization and Morality
33
Clive Michael Boutilier v. Immigration and Naturalization Service
33
Note on Challenging Medical Grounds for Penalizing Sexual Minorities
36
Michael Bowers v. Michael Hardwick et al.
37
Notes on Bowers v. Hardwick
45
Commonwealth of Kentucky v. Jeffrey Wasson
49
Note on the Kentucky Sodomy Case
50
Jed Rubenfeld, "The Right of Privacy"
50
Note on the Rubenfeld Critique: What Is the Proper Basis of a Constitutional Privacy Right?
53
3.
Gender Disguise and Expression
54
A.
When Clothes Make the (Wo)Man
54
People of the State of New York v. Mauricio Archibald
55
City of Chicago v. Wallace Wilson and Kim Kimberley
56
Notes on the Decline and Fall of Cross-Dressing Statutes
57
B.
The Rise of the Medical Model
58
Transsex Persons
58
Intersex Persons
59
The Medical Model in Law
60
C.
Competing Discourses
61
In the Matter of Jean Doe, By Her Next Friend, David Pumo v. William C. Bell, As Commissioner of New York City Administration of Children's Services
61
Susan Etta Keller, "Crisis of Authority: Medical Rhetoric and Transsexual Identity"
63
4.
Sex and Sexual Orientation Discrimination
66
A.
Equal Protection and Discrimination Based on Sex
67
Sharon Frontiero and Joseph Frontiero v. Elliot Richardson
68
Notes on Arguments for Heightened Scrutiny for Classifications Based on Sex
72
The Pregnancy Cases (LaFleur; Geduldig; Gilbert)
73
Curtis Craig v. David Boren
75
Note on the Defeat of the Era and the Court's Post-Craig Sex Discrimination Jurisprudence
76
United States v. Virginia
77
Katherine Franke, "The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender"
85
Note on the VMI Case and the Disaggregation of Sex From Gender
86
Tuan Anh Nguyen v. INS
87
Notes on Judicial Deference and State Justifications for Certain Sex Discriminations
89
B.
Equal Protection and Discrimination Based on Sexual Orientation
90
Clifford Norton v. John Macy et al.
92
Note on the Development of Equal Protection Claims for Gay Persons
93
Perry Watkins v. United States Army
94
Nan D. Hunter, "Life After Hardwick"
97
Note on the Immutability "Requirement" for Suspect Classifications and Its Relevance to Sexual Orientation
98
Roy Romer v. Richard Evans
100
Notes on Romer v. Evans
112
C.
The Sex and Sexual Orientation Relationship in Constitutional Law
114
John Singer and Paul Barwick v. Lloyd Hara
114
Ninia Baehr and Genora Dancel et al. v. John Lewin
115
Note on the Subsequent History of the Sex Discrimination Argument for Gay Marriage
117
Andrew Koppelman, "Why Discrimination Against Lesbians and Gay Men is Sex Discrimination"
118
Notes on the Sex Discrimination Argument for Same-Sex Marriage
119
Concluding Note on Levels of Equal Protection Scrutiny
121
5.
Speech and Expressive Association
122
A.
From Obscenity to Political Speech
123
Gay Students Organization of the University of New Hampshire v. Thomas Bonner
125
Notes on Student Organization Cases
127
National Gay Task Force v. Board of Education of the City of Oklahoma City
127
Gay Law Students Association et al. v. Pacific Telephone and Telegraph Co.
129
Notes on "Coming Out" as Political Activity
131
B.
From Obscenity to Indecency
132
The Feminist Porn Wars
133
American Booksellers Association, Inc. v. William Hudnut, III
135
Note on the Indianapolis Pornography Case
140
Note on the Racialization of Sexual Speech
141
Luke Records, Inc. et al. v. Nick Navarro
142
Kimberle Williams Crenshaw, "Mapping The Margins: Inter-sectionality, Identity Politics, and Violence Against Women of Color"
142
Note on Viewpoint Discrimination and the Culture Wars
145
Note on Expressive Conduct and the Public Nudity Cases
147
David Cole, "Playing By Pornography's Rules: The Regulation of Sexual Expression"
148
C.
Identity, Viewpoint and Expressive Association
151
John Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston
151
Note on Hurley, State Action, and the Speech-Identity Divide
155
Note on the Right of (Expressive) Association
157
Kathryn Roberts v. United States Jaycees
157
Boy Scouts of America et al. v. James Dale
158
Notes on the Boy Scouts Case and Expressive Identity Law
170
ch. 2
Watershed: Casey and Lawrence
175
1.
Casey: The Constitutional Compromise on Abortion
177
A.
The Center Holds
177
Planned Parenthood of Southeastern Pennsylvania v. Robert Casey
178
Notes on Casey
185
B.
Applying Casey's Undue Burden Standard
188
Greenville Women's Clinic, et al. v. Douglas E. Bryant
188
Note on the Undue Burden Standard and the Availability of Abortions
192
C.
The Legislative Compromise on Public Funding
194
2.
Lawrence v. Texas: The Inscrutable Standard
197
A.
The Repudiation of Bowers v. Hardwick
197
On the Eve of Lawrence
197
Note on the Status of Consensual Sodomy Laws, June 2003
198
John Geddes Lawrence and Tyron Garner v. Texas
199
Notes on Lawrence
216
B.
The Reach of Lawrence
221
Steven Lofton et al. v. Secretary of the Department of Children and Social Services et al.
221
On Petition for Rehearing En Banc
225
Note on Lofton and the Eleventh Circuit's Battles Over Lawrence
231
Reliable Consultants, Inc. v. Earle
231
Margaret Witt v. Department of the Air Force
232
Margaret Witt v. Department of the Air Force
236
Notes on the Progeny of Lawrence
237
C.
Transnational Dimensions of Sodomy Law Reform
239
The National Coalition for Gay and Lesbian Equality v. The Minister of Justice
239
Naz Foundation v. Government of NCT [National Capital Territory] of Delhi and others
242
Notes on NCGLE and Naz Foundation
243
3.
Post-Lawrence Regulation of Sexual Conduct
245
A.
State Regulation of Sex for Compensation
247
Terri Jean Bedford, et al. v. Attorney General of Canada
248
Note on Bedford and Constitutional Challenges to Anti-Prostitution Laws in the United States
251
B.
Which Spaces Are Private?
251
Joel Dulay Singson v. Commonwealth of Virginia
252
Note on Sexual Solicitation and the Criminal Law
254
C.
What Is Consensual?
254
Regina v. Anthony Brown et al.
254
Note on Consensual SM
258
D.
What Is an Adult?
258
Claudia Konker, "Rethinking Child Sexual Abuse: An Anthropological Perspective"
263
Notes on Normative Theories of Intergenerational Sex
265
Bellotti v. Baird
267
Jane Hodgson, M.D., et al. v. Minnesota
268
Jane Hodgson, et al. v. Minnesota, et al
270
Notes on Parental Notification Abortion Laws and Parental Control Over Their Daughters' Sexuality
270
Michael M. v. Superior Court of Sonoma County
271
State of Kansas v. Matthew R. Limon
273
Note on Gendered Regulation of Adolescent Sexuality
274
E.
Adultery
274
Lewell Marcum v. James McWhorter
275
Notes on the Law of Adultery
280
F.
What Is Incest? And Why Is It Illegal?
281
Commonwealth v. Dawud Rahim
281
Benton v. State
283
Notes on State Regulation of Incest
284
ch. 3
The Twenty-First Century's Liberty-Equality Debates
287
1.
Reproductive Rights: Regret as the New Objection to Abortion
289
Alberto R. Gonzales v. Leroy Carhart et al.
291
Notes on Carhart and the Evolving Right to Privacy
299
Planned Parenthood Minnesota, North Dakota, South Dakota v. Mike Rounds
305
Note on the New Wave of Laws Seeking to Create a Society Where Abortion Choice Is Very Difficult
309
2.
Liberty, Equality, and Marriage
311
A.
The Same-Sex Marriage Movement Before Lawrence: Gay Couples as Threats to Marriage
311
Richard and Mildred Loving v. Virginia
311
Notes on Loving, The Case for Same-Sex Marriage, and Justifications for Same-Sex Marriage Bars
314
B.
The Post-Lawrence Gay Marriage Breakthrough in New England---and New Libertarian Objections to Marriage Equality
319
Hillary Goodridge et al. v. Department of Public Health
320
Notes on the Massachusetts Same-Sex Marriage Case and Its Aftermath
323
David Parker; Tonia Parker; Joshua Parker; Jacob Parker; Joseph Robert Wirthlin; Robin Wirthlin; Jospeph Robert Wirthlin Jr. v. William Hurley et al.
326
Notes on the Free Exercise of Religion and Liberty-Based Objections to Marriage Equality
329
Nancy Gill and Marcelle LeTourneau et al. v. Office of Personnel Management et al.
330
Note on the Massachusetts DOMA Cases
336
C.
The California Marriage Equality Cases
337
In re Marriage Cases
337
Notes on the California Same-Sex Marriage Cases
348
Note on Proposition 8 and Liberty-Protecting Arguments Against Marriage Equality
352
Karen L. Strauss et al. v. Mark B. Horton et al.
354
Notes on the State Court Challenge to Proposition 8: What Is a Constitution For?
361
Kristin M. Perry, Sandra B. Stier, Paul T. Katami and Jeffrey J. Zarrillo, and the City and County of San Francisco v. Arnold Schwarzenegger (Governor), Edmund G. Brown Jr. (Attorney General) et al
365
Note on the District Court Opinion in Perry
368
Note on Whether the Marriage Equality Movement Was a Queer Error
369
Paula L. Ettelbrick, "Since When Is Marriage a Path to Liberation?"
370
Thomas Stoddard, "Why Gay People Should Seek the Right to Marry"
371
Notes on the Ettelbrick-Stoddard Debate
373
3.
Religious Liberty versus LGBT Equality
377
Gay Rights Coalition of Georgetown University Law Center et al. v. Georgetown University
379
Notes on the Georgetown Case and the Interaction of Conduct, Status, and Viewpoint
389
Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Leo Martinez
391
Notes on the Christian Legal Society Case
398
Tyler Chase Harper v. Poway Unified School District
400
Note on "Hate Speech" and Religious Discourse
404
ch. 4
Theories of Sexuality, Gender, and the Law
407
1.
Natural Law Theories of Sexuality, Gender, and the Law
411
John Finnis, "Law, Morality, and S̀exual Orientation'"
414
Notes on the New Natural Law's Theory of Sexuality and Gender Role
417
Stephen Macedo, "Homosexuality and the Conservative Mind"
421
Notes on a Newer Natural Law Open to Sexual Minorities
423
Notes on a Different Kind of Natural Law Theory: Evolutionary Psychology (Sociobiology)
425
2.
Modern or Liberal Theories of Sexuality, Gender, and the Law
431
A.
Economic Theories
435
Note on Richard Posner's Cost-Benefit Theory of Sexual Activities
436
Gary Becker, A Treatise on the Family
438
Notes on the Becker Thesis of the Family as a Gendered Situs of Specialization
439
Carol Rose, "Women and Property: Gaining and Losing Ground"
443
Notes on the Consequences of Women's "Taste for Cooperation"
444
B.
Feminist Theories
445
Catharine A. MacKinnon, "Feminism, Marxism, Method, and the State: An Agenda for Theory"
446
Notes on Radical Feminism and the Relationship Between Compulsory Heterosexuality and Patriarchy
448
Gayle Rubin, "Thinking Sex: Note for a Radical Theory of the Politics of Sexuality"
452
Note on the Clash Between MacKinnon's and Rubin's Theories of Sexuality, Gender, and the Law
458
Robin West, "The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory"
460
Mary Dunlap, "The Constitutional Rights of Sexual Minorities: A Crisis of the Male/Female Dichotomy"
462
Notes on Feminist Theory and Transsex and Intersex Persons
463
Note on Critical Race Theory and Feminism
467
Kimberle Crenshaw, "Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color"
468
Notes on Intersectionality and Its Implications for the Constitutional Politics of Sexuality and Gender
471
Elisabeth Young-Bruehl, The Anatomy of Prejudices
473
Notes on Young-Bruehl's Theory of Prejudice and Implications for Constitutional Rights
475
C.
Historical Theories of Sexuality, Gender, and the Law
476
John D'Emilio, "Capitalism and Gay Identity"
476
Note on Capitalism and Medicalization (Transgender and Intersex Persons)
480
Carroll Smith-Rosenberg, Disorderly Conduct: Visions of Gender in Victorian America
480
Note on the Survival of Natural Law Tropes Through a Modernization of Justification
481
William N. Eskridge, Jr., "Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century"
483
Notes on Identity-Based Social Movements and Constitutional Rights
486
3.
Post-Liberal Theories of Sexuality, Gender, and the Law
489
A.
Social Constructionist Theories
491
1.
Sexuality as a Social Construction (Michel Foucault)
491
Note on Feminism and Foucault
496
State v. Marvin Kaiser
499
Notes on Foucault and Incest, Statutory Rape, and Rape
501
2.
Gender and Sex as Social Constructions
504
Judith Butler, Gender Trouble: Feminism and the Subversion of Identity
504
Price Waterhouse v. Ann Hopkins
506
Notes on Hopkins and Law's Invocation of Gender
511
Note on Social Constructionist Theories and Identity Politics
513
3.
Disease (AIDS) as a Social Construction
515
Linda Singer, "Bodies---Pleasures---Powers"
516
Note on Aids and New Discourses of the Body
518
Russell K. Robinson, "Racing the Closet"
519
Note on the Raced Closet and Aids Policy
521
B.
Post-Liberal Theories of Identity and Strategies of Empowerment
521
Erving Goffman, Stigma: Notes on the Management of Spoiled Identity
522
Note on Goffmanian Strategies for Dealing With Stigma: Passing, Covering, and Microaggressing
524
Eve Kosofsky Sedgwick, The Epistemology of the Closet
525
Note on "Double Binds" and the Law
532
Marjorie Rowland v. Mad River Local School District
533
Note on the Mad River Case, The Construction of Heterosexuality, and the Erasure of Bisexuality
535
Note on Minoritizing Versus Universalizing Strategies for Sex, Gender, and Sexual Minorities
536
Sonia Katyal, "Exporting Identity"
538
C.
The Role of Law in the Social Construction Process
542
Ellen Ross and Rayna Rapp, "Sex and Society: A Research Note From Social History and Anthropology"
543
Dean Spade, "Documenting Gender"
545
Noa Ben-Asher, "The Necessity of Sex Change: A Struggle for Intersex and Transsex Liberties"
550
Note on the Law's Construction of Transsex and Intersex Identities
552
Jed Rubenfeld, "The Right to Privacy"
553
Note on Foucault and Constitutional Discourse
555
ch. 5
Sexuality, Gender, and the Law in the Workplace
557
Rosemary Pringle, "Sexuality at Work"
560
Vicki Schultz, "The Sanitized Workplace"
564
Debate on the Employment Non-Discrimination Act [ENDA]
566
1.
Sexuality at Work
567
Overview: Fragmented Legal Regimes
567
A.
The Office Closet
570
John Singer v. U.S. Civil Service Commission
570
Notes on Singer and the Fall of the Civil Service Exclusion
572
The Continuing Double Bind
573
Robin Joy Shahar v. Michael Bowers
574
Notes on Shahar
582
Wendy Weaver v. Nebo School District, et al.
583
Notes on Constitutional Claims for Workplace Equality
585
B.
Partner Benefits
585
Christine Tanner et al. v. Oregon Health Sciences University, et al.
587
Alaska Civil Liberties Union, et al. v. State of Alaska, et al.
590
National Pride at Work v. Governor of Michigan
591
Notes on Employment Benefits as a Political Football
594
C.
Mixing Religion and Sexuality in the Workplace
595
Leigh Cline v. Catholic Diocese of Toledo
596
Glynda L. Hall v. Baptist Memorial Health Care Corp.
599
Sandra M. Bruff v. North Mississippi Health Services, Inc.
602
Notes on Workplace Collisions Between Religion and Sexuality
605
2.
The Work of Gender
607
A.
Pregnancy
607
Note on the Equal Treatment/Special Treatment Debate and the PDA's Application to Pregnancy-Based Protections
609
California Federal Savings and Loan Association v. Mark Guerra
610
Note on Subsequent Parental Leave Legislation
613
Crystal Chambers v. Omaha Girls Club, Inc.
614
Note on Chambers and Critical Race Theory
617
In re: Union Pacific Railroad Employment Practices Litigation
618
Notes on Union Pacific and Disparate Impact of Employment Policies
620
B.
Gender Rebels
622
Price Waterhouse v. Ann B. Hopkins
623
Note on Hopkins and Title VII's Application to Gender Stereotype Discrimination
623
Mary Anne C. Case, "Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence," 105 Yale L.J. 1, 5 (1995)
624
Darlene Jespersen v. Harrah's Operating Co., Inc.
625
Note on Jesperson and Grooming in the Workplace
631
C.
Transgender Issues
631
Diane Schroer v. James H. Billington, Librarian of Congress
633
Notes on Sex Discrimination Claims by Transgender Plaintiffs
638
Krystal Etsitty v. Utah Transit Authority
640
Julienne Goins v. West Group
642
3.
Sexual Harassment
645
A.
The Meaning of "Sexual Harassment"
645
Joseph Oncale v. Sundowner Offshore Services, Inc., et al.
646
Notes on Same-Sex Harassment
650
Note on Semantic Theories of What "Because of Sex" Might Mean
650
B.
Competing Paradigms
651
C.
The Sex---Sexual Orientation Convergence in Harassment Cases
653
Medina Rene v. MGM Grand Hotel, Inc.
653
Brian D. Prowel v. Wise Business Forms, Inc.
658
Notes on Homosexualized Harassment
660
ch. 6
Families We Choose: Privatization and Plurality in Family Law
663
Martha Albertson Fineman, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies
664
1.
The Privatization of Family Law
670
A.
Introduction
671
Jana Singer, "The Privatization of Family Law"
671
Notes on Privatization and the Decline of Marriage
678
Note on Feminist Thinking About Privatization
682
Note on the American Law Institute's Principles of the Law of Family Dissolution (2002)
684
B.
Extending Some of the Duties and Benefits of Marriage to Cohabiting (Unmarried) Couples: Judicial Decisions
686
Michelle Marvin v. Lee Marvin
687
Notes on Marvin and Judicial Treatment of Contractual Claims by Cohabiting Partners
689
Trilogy of Cases Involving Asserted Rights of Cohabiting (Same-Sex) Partners Against Third Parties
693
Miguel Braschi v. Stahl Associates Company
693
In re Guardianship of Sharon Kowalski
695
Frank Vasquez v. Joseph Hawthorne
697
Notes on Lesbian and Gay Partners Asserting Rights Against Third Parties
698
American Law Institute
700
Note on the Ali's Proposed "Domestic Partnership" Status
702
C.
Extending Some of the Benefits of Marriage to Cohabiting Couples: Domestic Partnership Laws
702
Milagros Irizarry v. Board of Education of City of Chicago
706
Notes on Irizarry and State-Recognized Unions
711
2.
The Emerging Menu of Relationship Options
713
A.
The Old Regime: Marriage
713
B.
The Same-Sex Marriage Debate and New Institutions of Family Recognition
714
Note on Professor Waaldijk's Small-Steps Theory of Same-Sex Marriage Recognition
727
C.
The Emerging Regime: A Menu of State-Recognized Family Forms
727
William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay Rights
727
Notes on the Expanding Menu of State-Recognized Family Forms
732
3.
Interstate & International Recognition of New Families
734
A.
Interstate and Federal Recognition of Same-Sex Marriages
734
Notes on Interstate Recognition of Same-Sex Unions or Marriages
734
Margaret R. Chambers v. Cassandra B. Ormiston
738
Whether Out-of-State Same-Sex Marriage That Is Valid in the State of Celebration May Be Recognized in Maryland
740
Notes on Interstate Marriage Recognition Law
742
B.
Interstate Recognition of Civil Unions or Domestic Partnerships
744
John Langan v. St. Vincent's Hospital
744
Notes on Langan and Interstate Recognition of Civil Unions
748
Note on Federal Recognition of Non-Marital Partnerships
749
C.
International Recognition of Same-Sex Marriages and Partnerships
753
Yossi Ben-Ari v. Director of Population Administration, Ministry of Interior
753
Note on Trans-National Relationship Recognition
757
ch. 7
Polyparenting and Families of Choice
761
1.
Surrogacy, Custody, and Visitation
767
A.
Surrogacy and Baby-Selling
767
In The Matter of Baby M.
768
C., on Behalf of T. v. G. and E
771
Note on Statutes and Cases Governing Traditional (Baby M) Surrogacy and Gestational Surrogacy
772
K.M. v. E.G.
775
Notes on Critiques and Defenses of Surrogacy and Baby-Selling
776
Marla Hollandsworth, "Gay Men Creating Families Through Surro-Gay Arrangements: A Paradigm for Reproductive Freedom"
780
Note on Stanley v. Illinois and the Constitutional Rights of Biological Fathers
783
Michael H. v. Gerald D.
784
B.
Custody and Visitation
785
1.
Child Custody as a Form of Morals Regulation
785
Linda Sidoti Palmore v. Anthony Sidoti
786
Note on the Implications of Palmore v. Sidoti
787
2.
Sexuality, Gender, and Custody
787
Notes on the Nexus Approach in Operation: The Perseverance of Anti-Homosexual Tropes
789
Pamela Kay Bottoms v. Sharon Lynne Bottoms
792
Ex parte D.W.W.
795
Note on Bottoms, D.W.W., and the Modernization and Sedimentation of Antigay Discourse
797
Suzanne Lindley Daly, formerly known as Tim Daly v. Nan Toews Daly
798
Notes on Daly and Discrimination Against Transgender Parents
801
3.
Privacy Concerns
801
Jenifer Troxel et vir. v. Tommie Granville
802
C.
Social Science Evidence for Lesbian, Gay, and Transgender Parenting
805
Judith Stacey and Timothy Biblarz, "(How) Does Sexual Orientation of Parents Matter?"
806
Note on Studies of Children Raised by Transgender Parents
807
2.
Adoption, Parenthood by Estoppel, and De Facto Parenting
809
A.
Adoption
811
In Re Adoption of Charles B.
811
Note on Sexual Minorities and Adoption
813
Steven Lofton et al. v. Secretary of the Department of Children and Social Services et al.
815
In re: Matter of Adoption of X.X.G. and N.R.G.
816
Note on Race and Adoption
818
B.
De Facto or Psychological Parenthood
819
V.C. v. M.J.B.
820
Note on Psychological or De Facto Parents, and Parents by Estoppel
826
Note on Critiques of De Facto, Psychological, or Estoppel Parenthood
829
C.
Second-Parent Adoptions
830
In re M.M.D. & B.H.M.
831
Notes on Race, Sexual Orientation, and Second-Parent Adoptions
834
Chris Titchenal v. Diane Dexter
838
Lisa Miller-Jenkins v. Janet Miller-Jenkins
840
Note on Interstate Custody and Parenting Disputes
844
Note on the New District of Columbia Law Assuring That Children Will Have Two Mothers
844
3.
Polyparenting
846
In re Thomas S. v. Robin Y.
847
Note on Robin Y.'s Arguments on Appeal
853
Mark LaChapelle v. Denise Mitten
853
Elizabeth Bartholet, "Guiding Principles for Picking Parents"
856
ch. 8
Sexuality, Gender, and Education
859
1.
Regulating Expressions of Sexuality and Gender
861
A.
Inculcation, Critical Thinking, and the First Amendment
861
John Tinker et al. v. Des Moines Independent Community School District
861
Aaron Fricke v. Richard B. Lynch
862
Bethel School District No. 403 v. Matthew Fraser, a Minor, and E.L. Fraser, Guardian Ad Litem
864
Notes on Fraser and the Rock Lobster Case
868
Pat Doe, By Her Next Friend [Grandmother], Jane Doe v. John Yunits
871
Note on the Extent to Which School Boards Can Constitutionally Regulate Students' Gender and Sexual Expression
873
Board of Education, Island Trees Union Free School District No. 26 et al. v. Steven A. Pico
875
Note on Pico and Students' Right to Know
878
B.
Academic Freedom and Issues of Gender and Sexuality
879
David Solmitz et al. v. Maine School Administration District No. 59
881
Margaret Boring v. Buncombe County Board of Educ.
884
Note on Institutional Control of Sexuality Discourse in Secondary Schools
885
Marjorie Rowland v. Mad River Local School District
886
Transition Note on the Evolution of Discourse Relating to Sexual Minorities in Secondary Schools
886
Tyler Chase Harper v. Poway Unified School District
887
Notes on the High School T-Shirt Wars
887
C.
Academic Freedom versus the Defense Department
888
Donald H. Rumsfeld v. Forum for Academic and Institutional Rights, Inc. et al.
889
Note on the Fair Case and the Limits of Hurley and Dale
894
2.
Title IX and Gender Reconstruction in Education
897
A.
Sexual Harassment in Schools
898
James Nabozny v. Mary Podlesny et al.
899
Note on the Department of Education's Title IX Sexual Harassment Guidance
900
Aurelia Davis, Next Friend of LaShonda D. v. Monroe County Board of Education
902
Note on Davis and Anti-Gay Sexual Harassment in Schools
908
David Warren Saxe et al. v. State College Area School District (SCASD) et al.
910
B.
Title IX and the Revolutionary Expansion of Athletic Programs for Female Students
915
Amy Cohen et al. v. Brown University et al.
916
Notes on Cohen
920
Deborah L. Brake, Getting in the Game: Title IX and the Women's Sports Revolution
920
C.
Structural Reform: Same-Sex or All-Gay Schools?
924
Notes on Proposals for Female- or Gay-Only Classes and Schools
925
United States v. Virginia
929
Note on the Impact of the VMI Case on the Legality of Same-Sex Educational Institutions
931
3.
Legal Issues Arising Out of Public Sex Education
934
A.
Students' Rights to Factually Accurate Instruction as to Sexuality?
935
Alabama Statutes [§] 16-40A-2, Minimum Contents to be Included in Sex Education Program or Curriculum
935
Bettye Coleman et al. v. Caddo Parish School Board et al.
937
Note on Legal Objections to Morals-Based Sex Education Materials
943
B.
HIV/AIDS Education
943
Ignacia Alfonso et al. v. Joseph Fernandez et al.
946
Notes on the Legality of Condom Distribution Programs and Parents' Constitutional Rights in Their Children's Upbringing
951
John Ware v. Valley Stream High School District
952
Notes on Free Exercise Rights as Limits on State Sex and HIV/AIDS Education Programs
958
Note on HIV/AIDS Instruction as Possibly Creating a Hostile School Environment for Some Students
959
Comparative Law Note: American Versus European Sex Education Policies
960
C.
No Promo Homo Education Policies
961
Arizona Revised Statutes [§] 15-716, Instruction on Acquired Immune Deficiency Syndrome
963
Gay Men's Health Crisis et al. v. Dr. Louis Sullivan
965
Note on Constitutional Challenges to No Promo Homo Policies
969
ch. 9
U.S. Military Exclusions and the Construction of Manhood
971
1.
Racial Exclusion and Segregation in the U.S. Armed Services
973
Kenneth L. Karst, "The Pursuit of Manhood and the Desegregation of the Armed Forces"
973
Notes on Racial Segregation in the U.S. Armed Forces (1940s)
982
Note on the Truman Order and the Process of Desegregating the Armed Forces
987
2.
The Exclusion of Women From Combat
990
A.
A History of Women in the Military, 1861-1971
990
B.
Partial Integration of Women in the Armed Forces, 1971-81
993
Sharon Frontiero and Joseph Frontiero v. Elliott Richardson
994
Bernard Rostker v. Robert Goldberg et al.
995
Note on Rostker and Judicial Deference to Executive and Congressional Military Policies
1001
C.
Women's Combat Exclusion Under Fire and New Attention to Sexual Harassment
1004
Mady Wechsler Segal, "The Argument for Female Combatants"
1005
Note on Congressional and Administrative Deliberation Over the Women-In-Combat Issue
1007
Department of Defense, Directive 1350.2, "The Defense Military Equal Opportunity Program"
1013
Notes on Sexual Harassment in the U.S. Armed Forces
1014
Note on Pregnancies and Abortions for Military Personnel
1018
3.
The Military's Exclusion of Sexual and Gender Minorities
1022
A.
The Armed Forces' Exclusion of "Sodomites" and Sexual "Deviates"
1022
Joseph Steffan v. William J. Perry
1027
Notes on Steffan and the "Old" Exclusion of Gays From the Armed Forces
1033
Michelle Benecke and Kristin Dodge, "Military Women in Nontraditional Fields: Casualties of the Armed Forces' War on Homosexuals"
1035
Note on Anti-Gay Military Policy as Sex Discrimination
1038
B.
Don't Ask, Don't Tell, 1993-2011
1038
Policy Concerning Homosexuality in the Armed Forces: Hearings Before the Senate Committee on Armed Services
1038
Note on the Aftermath of the Gays in the Military Hearings: The Don't Ask, Don't Tell Statute and Regulations
1046
Note on Discharges Under the Don't Ask, Don't Tell Regime
1051
Note on Don't Ask, Don't Tell Constitutional Challenges and the Deference Issue
1053
Note on Harassment of Gender and Sexual Minorities in the Armed Forces
1056
C.
The Demise of Don't Ask, Don't Tell and Its Aftermath
1057
United States v. Eric P. Marcum
1057
Notes on Marcum and Sex Crimes by Military Personnel
1059
Thomas Cook v. Robert M. Gates
1061
Major Margaret Witt v. Department of the Air Force
1063
Log Cabin Republicans v. United States of America
1063
Note on First Amendment Attacks on Don't Ask, Don't Tell
1066
Department of Defense, Co-Chairs Jeh Charles Johnson & General Carter F. Ham, Report of the Comprehensive Review of the Issues Associated with a Repeal of "Don't Ask, Don't Tell"
1071
Note on the Armed Forces' Exclusion of Transgender and Intersex Persons
1075
Diane H. Mazur, A More Perfect Military: How the Constitution Can Make Our Military Stronger
1076
APPENDICES
1.
Individual Rights Provisions from the Amendments to the Constitution of the United States
1079
2.
Texas Sex Crime Statutes
1083
3.
The Ballot Pamphlet Supporting Amendment 2 to the Colorado Constitution (1992)
1097
4.
The District of Columbia Human Rights Act (Excerpts)
1107
5.
The Proposed Employment Non-Discrimination Act (ENDA)
1115
6.
Proposition 8 Ballot Materials
1123
7.
State Laws on Same-Sex Marriage and Marriage-Equivalent Statuses (Dec. 31, 2010)
1139
8.
State Rules Relating to Adoption by Lesbian and Gay Persons and Couples (Dec. 31, 2010)
1143
9.
Web Sites
1145
10.
The Attorney General's Letter Supporting Heightened Scrutiny for Sexual Orientation Discrimination
1151
Topics Index
1157