Dukeminier Awards Journal
Recognizing the Best Sexual Orientation and Gender Identity Law Review Articles of 2015
Current Issue: Volume 15 (2016)
In the years immediately following the Stonewall riots of June 1969, a period when “gay liberation” rather than “gay rights” described the ambitions of a movement, at least ten same-sex couples across the United States applied or attempted to apply for marriage licenses. All were refused except for two men in Texas, one of whom apparently looked convincing in a miniskirt, a wig, and false eyelashes. Lawsuits ensued in five states, and four made their way to and beyond trial. The three that produced written judicial opinions –Baker v. Nelson in Minnesota, Jones v. Hallahan in Kentucky, and Singer v. Hara in Washington State –have endured for decades as precedents supporting a heterosexual definition of marriage. This Article is about that early trilogy of cases and about the movement that inspired them.
James M. Oleske, Jr., Associate Professor, Lewis & Clark Law School, awarded the Stu Walter Prize for The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriage published in 50 Harv. C.R.-C.L.L. Rev. 99 (2015).
One of the most active fronts in the debate over same-sex marriage laws concerns proposed religious exemptions that would allow for-profit businesses to discriminate against same-sex couples. These exemptions, which are being championed by a group of prominent constitutional scholars, would provide a shield from state and local antidiscrimination laws for a wide variety of commercial actors. Examples include innkeepers who refuse to host same-sex weddings, bakers who refuse to provide cakes for such weddings, employers who refuse to extend family health benefits to married same-sex couples, and landlords who refuse to rent apartments to such couples.
Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law, Columbia Law School, awarded the Ezekiel Webber Prize for Risky Arguments in Social – Justice Litigation: The Case of Sex Discrimination and Marriage Equality published in 114 Colum. L. Rev. 2087 (2014).
This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument’s evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it “obviously correct” that laws excluding same-sex couples from marriage discriminate facially based on sex or impose sex stereotypes. Yet advocates have tended to minimize these arguments and most judges either sidestep or go out of their way to reject them.
The Dukeminier Awards also recognizes this year’s winner of the Williams Institute’s annual student writing competition:
K.B., Case Western Reserve University School of Law awarded the Jeffrey S. Haber Prize for student scholarship
for Never Quite The Woman That She Wanted To Be: How State Policies Transform Gender Marker Identification Into A Scarlet Letter
The day was February 28, 2014, and it was the spring semester of my first year in law school. I worked hard during the fall semester, and I positioned myself well for the summer job hunt. That day, I had a meeting with a clerk at the Carl B. Stokes Courthouse to work as a judicial extern. The meeting was largely a formality to sort out some clerical issues. Nonetheless, I was terrified: In our email exchange, the law clerk had asked me to bring my birth certificate.
The Williams Institute would like to thank Jeffrey S. Haber, Brondi Borer, Stu Walter, Chuck Williams, 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.