Dukeminier Awards Journal
Recognizing the Best Sexual Orientation and Gender Identity Law Review Articles of 2018
Current Issue: Volume 17 (2018)
by Adam P. Romero, Legal Scholarship and Federal Policy Director, The Williams Institute, UCLA School of Law
The Michael Cunningham Prize
Susan Frelich Appleton
Lemma Barkeloo & Phoebe Couzins Professor of Law at Washington University Law
Obergefell’s Liberties: All in the Family, 77 Ohio St. L.J. 919 (2016)
Family law and constitutional law stand firmly joined at the hip. A principal ingredient now binding these two domains is “the liberty promised by the Fourteenth Amendment,” the basis for the Supreme Court’s storied ruling in Obergefell v. Hodges, which guaranteed access to marriage for same-sex couples nationwide. Obergefell stands out as one of the most recent illustrations of the Court’s repeated reliance on liberty since the 1920s to review state regulation of family life. Over the years, the Court’s liberty rulings have come to protect childrearing decisions, reproductive choices, sexual activities, and intimate relationships, including those officially recognized and some created privately and informally.
The Stu Walter Prize
Assistant Professor of Law at Wake Forest University
Expressive Ends: Understanding Conversion Therapy Bans, 68 Ala. L. Rev. 793 (2017)
LGBT rights groups have made bans on conversion therapy, a practice intended to manage, reduce, or eliminate a person’s same-sex sexual attractions, a primary piece of their legal agenda. These laws prohibit licensed mental health providers from offering conversion therapy to minors, identifying the practice as one that exposes minors to “serious harms.” However, mental health professionals have overwhelmingly rejected conversion therapy, such that most conversion therapy practitioners are religious and lay counselors to whom the laws do not apply. Conversion therapy bans thus present a striking legal puzzle: Why have LGBT rights advocates expended so much effort and political capital on laws that do not reach conversion therapy’s primary providers? This Article argues that the bans are significant because of their expressive function, rather than their prescriptive effects.
After decades of mobilization and litigation, the U.S. Supreme Court held in Obergefell v. Hodges that the U.S. Constitution guarantees same-sex couples the right to marry. Now that marriage equality is here, there are looming questions about the next battlegrounds in the fight for formal equality for LGBT people. Possibilities include “religious freedom laws”; discrimination against LGBT people in the workplace, housing, and public accommodations; and discrimination against LGBT families living inside and outside of marriage.
There is a fundamental revolution underway regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender rights movements have forced a persistent rethinking of the legal presumptions associated with science, sex, and gender. For years, the law has largely maintained a steadfast commitment to the idea that one’s assigned sex—referring to the binary polarities of male and female—operated as a relatively stable fixture, capable of being mapped onto one’s gender identity and self-perception. This expectation of stability translated into a basic presumption within law and policy that gender identity and assigned sex almost always align with one another—that the binary formation of sex operated as a basic organizing principle to formalize and reify gender expression, sexuality, and so forth. In turn, antidiscrimination jurisprudence reflects these principles and, with the exception of a minority of cases, has historically labored under the perception that gender identity and assigned sex rarely conflict with one another. The myriad of legal regulations that deploy sex classifications rest on this presumption; everything from the procurement of passports to access to social services to the gathering of data relies on the presumption of the binary, fixed nature of assigned sex.
Those who form families through assisted reproductive technologies (ART)—donor insemination, in vitro fertilization, and gestational surrogacy—frequently establish parental relationships in the absence of gestational or genetic connections to their children. In seeking legal parental recognition, they do not deny the importance of biological ties, but simply urge courts and legislatures to credit social contributions as well. In other words, they ask for recognition that turns on factors such as intent to parent, parental conduct, and family formation. Yet law fails to value parenthood’s social dimensions adequately and consistently. This failure has significant and painful consequences in the lives of parents and children. Those who have been parenting their children for many years may find they are not legal parents. Some become legal parents only by engaging in the time-consuming, costly, and invasive process of adopting their children. Others, for whom adoption is impossible, remain legal strangers to their children. Indeed, some parents may not realize adoption is necessary until it is too late, perhaps when their relationship to the legally-recognized parent dissolves.
The Dukeminier Awards also recognizes this year’s winner of the Williams Institute’s annual student writing competition.
Jeffrey S. Haber Prize for student scholarship
Chan Tov McNamarah
Cornell Law School
Sexuality on Trial: Expanding Pena-Rodriguez to Combat Juror Queerphobia (2018)
On March 6, 2017, in Pena-Rodriguez v. Colorado, the U.S. Supreme Court recognized a constitutional exception to Federal Rule of Evidence 606(b), holding that a juror’s comments made during deliberation may be used to set aside a verdict if they suggest reliance “on racial stereotypes or animus.” Rule 606(b) serves as a “no impeachment rule”—generally preventing jurors from testifying about statements made during deliberations after a verdict has been rendered. In Pena-Rodriguez, the Supreme Court considered whether Rule 606(b) preempted juror testimony and impeachment of the verdict, where a juror made statements evoking disparaging stereotypes about “Mexican[s] and Mexican men” during deliberations. The five to three decision ultimately carved out a limited exception, covering only cases in which “one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” Writing for the majority, Justice Anthony M. Kennedy reasoned that such an exception was necessary “to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.”
The Williams Institute would like to thank David Sanders, Jeffrey S. Haber, Brondi Borer, Stu Walter, Chuck Williams, IGLSS and the family and friends of Ezekiel “Zeke” Webber for their endowment gifts to fund individual prizes recognizing outstanding scholarship related to sexual orientation and gender identity law.