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June 4, 2024
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Pride Month Issue
“In this Article, Judge Epps and Ms. Kaitlin Minkler collect an unrivaled amount of information about the first openly gay judges confirmed for life to federal courts of general jurisdiction in the United States. The Article references interviews with the judges about their trailblazing journeys. It examines the experiences of these twenty-two judges as they shape the judiciary from within and inspire future generations of LGBTQIA+ lawyers.”
* Chief United States Magistrate Judge for the Western District of Missouri.
** Former Law Clerk to Judge Epps and Current Law Clerk to Judge Stephen R. Bough.
“Arguments about how to define ‘woman’ and the meaning of ‘sex’ more generally have become a proxy of sorts for the culture wars currently animating disagreements between conservatives and liberals with respect to the rights of sexual minorities and the role that gender identity plays in society more generally, whether in education, sports, marriage, or reproduction. The general assumption by those on the political right is that ‘sex’ has traditionally meant biological sex—that a determination of whether one is male or female, a man or a woman, could be easily resolved by resorting to the science of biology. By contrast, those on the political left have argued for a more inclusive definition of ‘sex,’ one that embraces difference in terms of gender identity and that places importance on an individual’s own understanding of identity. It is generally assumed that this broader definition of ‘sex,’ one that considers aspects of sex or gender beyond issues of biology, is of relatively recent vintage, a product of progressive or ‘woke’ thinking.
This Article, by reviewing legal authority on the meaning traditionally given to the term ‘sex,’ under both the anti-discrimination laws and the United States Constitution, challenges the notion that the broader understanding of that term is of recent vintage, at least as a legal matter. Instead, although some courts and some individual judges and justices have declared that ‘sex’ meant only ‘biological sex,’ the way in which that term was interpreted, from the earliest court decisions, casts doubt on those assertions. Instead, the term ‘sex’ has traditionally been defined to include traits and characteristics beyond biological sex, to the extent that biological sex is understood to be determined by chromosomes or anatomy.”
* Robert J. Lynn Chair in Law, the Michael E. Moritz College of Law at The Ohio State University.
“The recently enacted Respect for Marriage Act is important bipartisan legislation that will protect same-sex marriage if the Supreme Court overrules Obergefell v. Hodges. And it will protect religious liberty for traditional beliefs about marriage. The Act has been attacked by hardliners on both sides. We analyze the Act section by section, showing how it works, why it is constitutional, and why it does not do the many things its critics have accused it of.
The Act requires every state to recognize same-sex marriages performed in other states. If Obergefell were overruled, Congress would have no authority to require each state to license same-sex marriages within its borders. By invoking the Full Faith and Credit Clause, Congress did all that it could for same-sex couples.
The Act protects religious liberty with congressional findings, rules of construction, modest new substantive protections, and a limitation on the Act's reach: only persons acting under color of state law are required to recognize sister-state marriages. The Act specifically addresses the fear that conservative religious entities could lose their federal tax-exempt status.
The Act is a model for pluralistic approaches that protect both sides in the culture wars. State legislatures have passed many gay-rights bills with protections for religious liberty. But neither side has been able to pass gay-rights bills without such protections, or absolute religious liberty bills with no allowance for gay and lesbian rights. The Respect for Marriage Act is an encouraging return to the practice of protecting liberty for all Americans-- both the LGBTQ community and the conservative religious community.”
* Robert E. Scott Distinguished Professor of Law Emeritus, University of Virginia, and Alice McKean Young Regents Chair in Law Emeritus, University of Texas.
** James L. Oberstar Professor of Law and Public Policy, University of St. Thomas (Minnesota).
*** R.B. Price Professor Emeritus and Isabella Wade & Paul C. Lyda Professor of Law Emeritus, University of Missouri.
**** Mildred Van Voorhis Jones Chair in Law, University of Illinois.
“This article explains why virtually any law aimed specifically at restricting, suppressing, or banning drag performances violates the First Amendment. The key reasons for this are as follows. First, drag performances are expressive conduct protected by the First Amendment. Second, drag performances generally do not fall into any uncovered category of speech, such as obscenity. Third, drag performances express viewpoints. Fourth, the Supreme Court has set an extremely high standard for permitting viewpoint discrimination--even for speech not covered by the First Amendment. Laws aimed at restricting drag performances do not meet this high standard because, among other reasons, such laws are not precisely tailored. Thus, laws that pick out drag performances for restriction over and above other forms of covered (or even uncovered) speech violate the First Amendment. After offering these arguments, this article examines how these First Amendment facts impact anti-drag laws in Tennessee, Arkansas, and Montana. These three case studies provide further evidence for the conclusion that anti-drag laws are generally unconstitutional by examining issues of overbreadth and vagueness, with an emphasis on how vague and overbroad anti-drag laws like these impermissibly chill the speech and expression of drag performers and of trans people.”
* Mark Satta is Assistant Professor of Philosophy at Wayne State University.
“Law was central to the homophile movement, the main movement for queer rights between World War II and Stonewall. But examinations of this movement's engagement with law have exclusively focused on public law. Private law has received virtually no attention. This Note corrects that oversight. It unearths instances in which groups advocating for queer rights invoked contract law during the 1950s and 1960s. These moments reveal contract law's important--and previously overlooked--role in homophile legal strategy.
Homophile groups' use of contract law changed over the two decades of the movement. During the 1950s, those in the homophile movement used contract law to avoid legal disputes--a sort of ‘preventative law’ that shielded queer people from the outside world's scrutiny. But after the movement's militarization in the early 1960s, queer organizations began making affirmative claims based in contract law. These claims served two purposes. On one hand, they were a tool queer people used to protect their public law rights when those rights were under attack. But organizations also saw the assertion of contract law rights as a goal itself--a key part of queer people's growing rights consciousness.
This Note thus gives contract law its rightful due in the history of homophile legal strategy. Its findings demonstrate that private law should play a larger role in both our study of social movements' legal strategy and our vision of a future in which marginalized groups have full equality under the law.”
* J.D. Candidate 2024, Columbia Law School.
“On the last day of June 2023, First Amendment supporters all across the nation cheered with glee when the U.S. Supreme Court handed down its decision in 303 Creative v. Elenis. The Court held that, under the First Amendment, a wedding website designer, who believes that same-sex marriage is wrong, could refuse to provide services to a same-sex couple seeking a wedding website. Instead of treating the website as an ordinary commercial product, the Court treated it as pure speech worthy of Constitutional protections. The decision should be seen as nothing less than a major victory by First Amendment supporters because Gorsuch's short, yet direct, majority opinion brought free speech absolutism back to life. However, that did not come without a price. By holding that the wedding website designer could not be subjected to state public accommodations laws, the Court called into question the place of these laws in modern society. Sotomayor's dissent is a stern warning to the public: The future of these laws is grim. While that might be of no concern to free speech absolutists, they too will be affected by the decision. Instead of providing a resolution to the conflict that existed between the gay community and the religious community, 303 Creative only amplified and expanded that conflict, creating a wide range of uncertainties.”
* J.D., 2021, Indiana University Maurer School of Law.
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