Gender and Sexual Orientation
Delineating the Heinous: Rape, Sex, and Self-Possession
In this Essay, Professor Ramachandran examines Professor Rubenfeld’s concept of self-possession, which Rubenfeld presents as a helpful way to define the harm of rape. She argues that if the concept represents exclusive physical control over one’s body, it is an elusive and undesirable ideal, and as problematic as the sexual autonomy concept that Rubenfeld critiques. Alternately, if it represents the narrower concept of mind-body integration, it makes a principled distinction between rape and battery impossible. The solution is to acknowledge that rape is a sex crime, unique because sex carries distinctive risks and meanings.
Sex Without Consent
Modern rape law lacks a governing principle. In The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy, Jed Rubenfeld contends that the most obvious candidate—sexual autonomy—is inadequate. I agree, though for vastly different reasons. Rubenfeld advances a conception of rape as a violation of a right to self-possession; this approach raises real problems. I introduce an alternative understanding of rape—rape as a violation of sexual agency. Theories of agency expressly contemplate its exercise under constraints. This framework thus can account for both women’s sexual violation and the value of women’s sexual subjectivity. The turn to agency provides new justification for defining rape as sex without consent.
Windsor’s Right to Marry
In this Essay, Professor Douglas NeJaime reads United States v. Windsor, which technically rested on equal protection grounds, through the lens of the fundamental right to marry. The Windsor Court absorbed decades of LGBT rights advocacy by situating same-sex couples within a contemporary model of marriage in which marriage’s private welfare function and public recognition dimensions are mutually reinforcing. NeJaime argues that this specific understanding of the right to marry will likely guide the Court’s equal protection, rather than substantive due process, analysis when it one day determines the constitutionality of state marriage prohibitions.
Lower Court Popular Constitutionalism
Scholars of popular constitutionalism have persuasively argued that an array of nonjudicial actors—social movements, the federal political branches, state and local political entities—play an important role in shaping constitutional meaning. To date, the accounts of such scholars have largely focused on the ways that constitutional doctrine at the Supreme Court level can be infiltrated and shaped by such popular constitutional influences. In this Essay, Professor Katie Eyer draws on the events following the Obama Administration’s February 2011 Defense of Marriage Act (DOMA) announcement—and the history of gay equality litigation that preceded it—to develop a theory of the lower federal courts as participants in the popular constitutionalism dialogue.
Congress’s Authority To Enact the Violence Against Women Act: One More Pass at the Missing Argument
My “missing argument” invokes the structure of the Supreme Court’s decision in Jones v. Alfred H. Mayer Co. to explain congressional authority to enact the civil rights provisions of the Violence Against Women Act. Like the “relics” of slavery, patterns of violence against women trace to decades of state-sponsored discrimination against women, and Congress has the authority under Section 5 of the Fourteenth Amendment to take steps to repair that unhappy legacy.
Created in Its Image: The Race Analogy, Gay Identity, and Gay Litigation in the 1950s-1970s
119 Yale L.J. 316 (2009). Existing accounts of early gay rights litigation largely focus on how the suppression and liberation of gay identity affected early activism. This Note helps complicate these dynamics, arguing that gay identity was not just suppressed and then liberated, but substantially transformed by activist efforts during this period, and that this transformation fundamentally affected the nature of gay activism. Gay organizers in the 1950s and 1960s moved from avoiding identity-based claims to analogizing gays to African-Americans. By transforming themselves in the image of a successful black civil rights minority, activists attempted to win over skeptical courts in a period when equal protection doctrine was still quite fluid. Furthermore, through this attempted identity transformation, activists replaced stigmatizing medico-religious models of homosexuality with self-affirming civil rights-based models. This identity transformation through analogy cemented gay rank-and-file perception of the social treatment they faced as unjust, and helped determine what remedies gays would seek. For example, defensive gay litigation of the 1950s soon gave way to the affirmative impact-type litigation of the civil rights movement. Similarly, in the image of the 1960s racial justice movement, 1970s gays began to pursue legal acceptance of gay marriage rather than first seeking intermediate relationship recognition. Thus, analogies and identity claims can be useful tools for perceiving and remedying oppression. They should, however, be tools that unite, not divide groups: gays and blacks, especially, should recognize their (contingent) commonalities, created as gays remade themselves in the image of blacks.
Marriage, Property and [In]Equality: Remedying ERISA’s Disparate Impact on Spousal Wealth
Childbearing, Childrearing, and Title VII: Parental Leave Policies at Large American Law Firms
118 Yale L.J. 1182 (2009). In a fiercely competitive labor market, large American law firms universally offer some paid leave to attorneys after the birth of the child. This Note offers an empirical investigation of those policies, finding that all firms offer paid leave to new mothers, and many firms offer at least some leave to fathers as well. In most cases, however, men receive much less leave than women. The most grossly gender-disproportionate policies harm attorneys of both genders—perpetuating stereotypes about women, stigmatizing fathers who spend time with their children, and entrenching the “ideal worker” norm that scholars have protested. Based on this analysis, the Note illustrates how some policies are vulnerable to a Title VII challenge by male employees. In particular, law firms that offer maternity leave of three to four months, without offering male attorneys a parallel benefit, violate Title VII’s prohibition on sex discrimination. Furthermore, some firms offering facially neutral policies may also manifest impermissible gender bias in the application of parental leave.
Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart
117 Yale L.J. 1694 (2008). This essay on the law and politics of abortion analyzes the constitutional principles governing new challenges to Roe. The essay situates the Court’s recent decision in Gonzales v. Carhart in debates of the antiabortion movement over the reach and rationale of statutes designed to overturn Roe—exploring strategic considerations that lead advocates to favor incremental restrictions over bans, and to supplement fetal-protective justifications with womanprotective justifications for regulating abortion. The essay argues that a multi-faceted commitment to dignity links Carhart and the Casey decision on which it centrally relies. Dignity is a value that bridges communities divided in the abortion debate, as well as diverse bodies of constitutional and human rights law. Carhart invokes dignity as a reason for regulating abortion, while Casey invokes dignity as a reason for protecting women’s abortion decisions from government regulation. This dignity-based analysis of Casey/Carhart offers principles for determining the constitutionality of woman-protective abortion restrictions that are grounded in a large body of substantive due process and equal protection case law. Protecting women can violate women’s dignity if protection is based on stereotypical assumptions about women’s capacities and women’s roles, as many of the new woman-protective abortion restrictions are. Like old forms of gender paternalism, the new forms of gender paternalism remedy harm to women through the control of women. The new woman-protective abortion restrictions do not provide women in need what they need: they do not alleviate the social conditions that contribute to unwanted pregnancies, nor do they provide social resources to help women who choose to end pregnancies they otherwise might bring to term. The essay concludes by reflecting on alternative—and constitutional—modes of protecting women who are making decisions about motherhood.
Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment
117 Yale L.J. 1854 (2008). This Note demonstrates that the American rules for impeaching witnesses developed against a cultural background that equated a woman’s “honor,” and thus her credibility, with her sexual virtue. The idea that a woman’s chastity informs her credibility did not originate in rape trials and the confusing interplay between questions of consent and sexual history. Rather, gendered notions of honor so permeated American legal culture that attorneys routinely attempted to impeach female witnesses by invoking their sexual histories in cases involving such diverse claims as title to land, assault, arson, and wrongful death. But while many courts initially accepted the notion that an unchaste woman might be a lying witness, most jurisdictions ultimately rejected unchastity impeachment as illogical or irrelevant. In the process, the gendered notion of honor may have influenced judicial preference for reputation evidence over evidence regarding specific acts as a form of impeachment. The unchaste/incredible equation remained viable in the law of rape as courts continued to insist that the victim’s sexual history was relevant to credibility, consent, or both. Although legal reforms have narrowed the use of sexual history evidence in rape trials, the concept that a woman’s sexual virtue signifies her credibility survives today in moral turpitude law and in the treatment of prostitution as a crime that bears on credibility.
Defining the Protected Class: Who Qualifies for Protection Under the Pregnancy Discrimination Act?
117 Yale L.J. 1215 (2008).
Why (and When) Cities Have a Stake in Enforcing the Constitution
115 Yale L.J. 2218 (2006) This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. The Essay argues against the conventional view that cities either have no distinctive role in interpreting the Constitution or that their interpretations should be considered suspect, even dangerous. But it also contends that cities should generally be permitted to decline to enforce state laws on constitutional grounds, or to challenge their constitutionality in court, only when they do so in order to expand the scope of local policymaking discretion. Thus, the Essay concludes that the problem with San Francisco's disregard of California's marriage laws was not (as the California Supreme Court suggested in Lockyer) that its action was too localist, but rather that it was not localist enough. San Francisco was not seeking freedom from state law so that its officers could adopt a distinct, local marriage policy for San Franciscans. Instead, the city claimed that higher law required all local officers to grant, rather than deny, licenses to same-sex couples seeking to marry. Thus, while San Francisco may have seemed to strike a blow for city power when it took the Constitution into its own hands, a deeper consideration of the controversy suggests that advocates of decentralization should have little reason to cheer the city's actions.