Friday, May 17, 2013
Elizabeth N. Jones (Western State College of Law) has posted her article Judges, Family Law, Cultural Sociology of Divorce: An Encyclopedia, pp. 626-629, Robert E. Emery, ed., 2013, on SSRN. Here is the abstract:
This is a chapter in an encyclopedia put forth by Sage Publications. I am the sole author of this particular chapter; there are several hundred contributing authors to the encyclopedia as a whole. It is a multi-disciplinary work which details subjects related to divorce: legal, social, anthropological, religious, psychological, and historical.
In this chapter, I describe the role of the family law judge in divorce proceedings.
The role of the family law judge is a varied one. At its core, the position is one of authority. The lawyers, parties, and court staff all give the judge great deference in the courtroom, referring to the judge as “your honor.” This is further affirmed in the judge’s raised bench overlooking the entire courtroom, in the judge’s traditional gavel used to silence the courtroom and maintain order, and in the judge’s distinct formal clothing, usually consisting of long judicial robes. These formalities are designed to instill respect for the legal institution as a whole.
Thursday, May 9, 2013
Govind Persad (University of Pennsylvania) posted "What Marriage Law Can Learn from Citizenship Law (and Vice Versa)," 22 Law & Sexuality (2013), on SSRN. Here is the abstract:
Citizenship and marriage are legal statuses that generate numerous privileges and responsibilities. Legal doctrine and argument have analogized these statuses in passing: consider, for example, Ted Olson’s statement in the Hollingsworth v. Perry oral argument that denying the label “marriage” to gay unions “is like you were to say you can vote, you can travel, but you may not be a citizen.” However, the parallel between citizenship and marriage has rarely been investigated in depth. This paper investigates the marriage-citizenship parallel with a particular focus on three questions prompted by recent developments in law and policy:
1) Should we provide second-best statuses? Some couples — in particular gay and lesbian couples—have been offered permanent statuses, like civil unions, that bear legal privileges but fall short of full marriage equality. In contrast, similar differentiations within citizenship are generally resisted. The history of citizenship may presage the increasing unacceptability of differentiations within status in the gay marriage context. Meanwhile, the history of marriage equality efforts may help present-day citizenship advocates choose legal strategies.
2) Should statuses be a gateway to rights? Some early gay rights advocates unsuccessfully argued that advocates should challenge the primacy of marriage, rather than seek access to the institution. Advocates attempting to expand the rights of current noncitizens face similar choices: should they seek to give current noncitizens greater access to citizenship, or challenge the reservation of important rights to citizens?
3) Can status relationships be plural? Many critics of dual and multiple citizenship argued that allegiance to multiple states was immoral, unadministrable, or both. More recently, polygamous marriage has become a topic of legal and political discourse, first as a foil in anti-gay marriage arguments and later as a political possibility in its own right. I will consider whether polygamous marriage advocates can profitably draw on arguments for multiple citizenship, and how multiple-citizenship advocates should responsibly respond to the analogy with polygamy.
Tuesday, April 30, 2013
Marcia Anne Yablon-Zug (University of South Carolina School of Law) has posted her article "Adoptive Couple v. Baby Girl: Two and a Half Ways to Destroy Indian Law" (forthcoming Michigan Law Review) on SSRN. Here is the abstract:
On April 16th, the US Supreme court will hear arguments in the case Adoptive Couple v. Baby Girl. This case involves an Indian child whose attempted adoption by a non-Indian couple in South Carolina violated the provisions of the Indian Child Welfare Act (ICWA). Because of this violation, the family court ordered her return to her biological father. The case has received extensive media attention and has resulted in the vilification of ICWA. Nevertheless, the Court’s decision to hear the case was surprising. The issues in the case are straightforward and the lower courts’ decisions were clearly correct. Consequently, the Supreme Court’s interest likely indicates that this case will be used to address broader issues than those delineated in the questions presented. This essay explores the legal issues raised by the Baby Girl case and examine the ways in which the Court is likely to use this decision to redefine current understanding of ICWA and maybe all of Indian law.
Saturday, March 23, 2013
Friday, March 22, 2013
ISFL REGIONAL CONFERENCE IN ISRAEL, DECEMBER 29TH – 31ST, 2013
Theme: International Family Law with Emphasis on the Work of the Hague Conference on Private International Law.
The conference marks the 30th anniversary of the entry into force of the Hague Convention on the Civil Aspects of International Child Abduction (in December 1983) and the publication of Dr. Rhona Schuz's book, "The Hague Child Abduction Convention – A Critical Analysis" (to be published in summer 2013 by Hart Publishing).
Download Conference flyer for further details.
Thursday, March 21, 2013
The statistics tell the story of the American family: According to the U.S. Census Bureau, 2010 marked the milestone when blended families or stepfamilies became the most common form of family in America; 2,100 new blended families are formed every day in this country; 41 percent of unmarried couples living together have children living in the home; over 65 percent of Americans are now a stepparent, a stepchild, a stepsibling, a step-grandparent, or touched directly by a stepfamily scenario. Moreover, the Pew Research Center reports interracial marriages are on the rise in America--in 1980, 3 percent of married couples were mixed race; today 1 in 12 couples are interracial couples.
We will produce a carefully balanced academic work that chronicles the social, cultural, economic, and political aspects of American families from the colonial period to the present. Key themes will include families and culture (including mass media), families and religion, families and the economy, families and social issues, families and social stratification and conflict, family structures (including marriage and divorce, gender roles, parenting and children, and mixed and non-modal family forms), and family law and policy. Approximately 600 articles, richly illustrated with historical photographs and video clips in the online edition, will provide the historical context for students to examine political and social debates about the importance of the family and the evolving constructions of the American family. The work will also include a collection of primary source documents demonstrating these themes across time. The signed articles, with cross-references and Further Readings are accompanied by pedagogical
elements, including the Reader's Guide, Chronology of American Families, Resource Guide, Glossary, and thorough index.
This comprehensive project will be published by SAGE Reference and will be marketed to academic and public libraries as a print and digital product available to students via the library's electronic services. The General Editors, who will be reviewing each submission to the project, are Drs. Lawrence Ganong and Marilyn Coleman, University of Missouri.
We are currently making assignment with a deadline of June 7, 2013.
If you are interested in contributing to this cutting-edge reference, it is a unique opportunity to contribute to the contemporary literature, redefining sociological issues in today's terms. SAGE Publications offers an honorarium ranging from SAGE book credits for smaller articles up to a free set of the printed product for contributions totaling 10,000 words or more.
The list of available articles is already prepared, and as a next step we will e-mail you the Article List (Excel file) from which you can select topics that best fit your expertise and interests. Additionally, Style and Submission Guidelines will be provided that detail article specifications. If you would like to contribute to building a truly outstanding reference with Social History of American Families, please contact me by the e-mail information below. Please provide your CV or a brief summary of your academic/publishing credentials in related disciplines.
Thanks very much.
Wednesday, March 6, 2013
This article offers the only empirical analysis to date of national data evaluating the claim that defense of marriage acts (DOMAs) preserve and stabilize the family. The article examines marriage and divorce changes in trends for every state over the last ten years for which data is available comparing changes, if any, before and after a DOMA was enacted or same sex marriage was permitted. After concluding that DOMA does not play a role in either divorce or marriage changes in trends or rates, the article explores what variables are, in fact, correlated with family stability. Given that poverty, religiosity, education, income, age of marriage all play a key role in family stability, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs’ continued attraction for achieving family stability. Finally, the article offers pragmatic recommendations for achieving family stability. The article asserts that rather than advocate for one decreasingly relevant model of family formation, steps should be taken to mirror the characteristics and outcomes that are associated with stable families. Substance over form will lead to the goals that misguided legislatures thought DOMAs would achieve.
Friday, February 22, 2013
Jones: "Questioning a Juvenile's Capacity for Criminal Liability in Street Gangs Post-J.D.B. v. North Carolina"
Elizabeth N. Jones (Western State College of Law) has posted "Questioning a Juvenile's Capacity for Criminal Liability in Street Gangs Post-J.D.B. v. North Carolina," 32 Children's Legal Rights Journal (Winter 2012) on SSRN. Here is the abstract:
This article explores how the recent groundswell of acceptance of adolescent neuroscience has manifested in United States Supreme Court cases involving juveniles, and the resultant implications for children accused of gang-related crimes and enhancements. Juvenile gang convictions proliferate, but the foundation of such prosecutions is precariously – and improperly – based. Though varied in title, predicate offenses, and penalties, most state gang legislation contains language requiring offenders to have at least a tacit understanding, or knowledge, that the group’s common purpose is to commit crimes to benefit the gang. However, this mens rea required for anti-gang statutes, combined with the inability to know, without closer analysis, whether juveniles in fact possess such mens rea, creates a conundrum: children make up a significant proportion of gang membership, but yet lack the capacity to be prosecuted under current anti-gang legislation, especially given the new parameters set forth by the United States Supreme Court.
Thursday, February 21, 2013
Katie R. Eyer (Rutgers School of Law -- Camden) has posted her paper "Constitutional Colorblindness and the Family" (forthcoming, University of Pennsylvania Law Review) on SSRN. Here is the abstract:
Family law has escaped the colorblindness revolution. During the same time frame that the Supreme Court has adopted increasingly stringent constitutional standards for even “benign” uses of race (including most notably affirmative action), the lower courts have continued to take a loose and permissive approach to many government uses of race in the family. Thus, courts have continued to regularly affirm (and to apply minimal constitutional scrutiny to) the use of race to determine foster care and adoptive placements, as well as the use of race as a factor in custody disputes between interracial parents.
This paper, drawing on heretofore unexplored historical sources, examines the Supreme Court’s role in the development of these divergent approaches to the use of race in the affirmative action and family law contexts. As those sources demonstrate, the Court has — over the last 40 years — had numerous opportunities to address the growing divide. Nevertheless the Court (and particularly its most strident affirmative action detractors) have been reluctant to do so, at least in part because of a normative endorsement of the race-based practices at issue in the family law context. Thus, the Court has avoided taking up cases involving the use of race in family law — and taken other steps to limit the reach of its doctrine in the family law arena — based on a normative perception that remaining instantiations of race in family law are, at their core, benign.
This history has profound implications for the Court’s broader race law jurisprudence. Supreme Court doctrine has — on its face — rejected the possibility of a role for normative judgments about the “benign” or “invidious” nature of particular race-based classifications in its Equal Protection doctrine. But the history of the Court’s approach to family law suggests strongly that the Court itself does in fact weigh such factors sub rosa in its approach to taking up and adjudicating race law claims. This article suggests that there are serious process, legitimacy and substantive concerns raised by such a divergence, and discusses alternatives for bringing the Court’s doctrine into greater alignment with its practice.
Saturday, February 16, 2013
Beyond Roe: Reproductive Justice in a Changing World
Throughout 2013, five law schools in the Delaware Valley will hold events exploring various aspects of reproductive justice in the 40 years post-Roe v. Wade. The final event in this series is a conference sponsored by the Rutgers School of Law – Camden that will take place on Friday, October 11 on the Rutgers campus in Camden, New Jersey.* You can find more information about the conference here: http://camlaw.rutgers.edu/beyond-roe-conference.
We are now pleased to invite proposals for papers and panels. The conference theme is Beyond Roe: Reproductive Justice in a Changing World. We welcome submissions on any topic related to the law, policy and reproduction, including avoiding reproduction, public policy related to reproduction, and reproductive regulation post-Roe.
Paper abstracts should be no more than 500 words, accompanied by a descriptive title for the paper proposed. Proposed panels should include a description of the overall topic, as well as a panel title and the titles of all the papers and panelists to be included in the panel. Panels should include no less than 4 proposed panelists. Panel proposals should also be no more than 500 words. All submissions must include the names, e-mail addresses, and full affiliations of all authors. In the case of panels and co-authored papers, please identify a corresponding author and provide sufficient detail in your abstract or proposal so that reviewers can fully assess your proposal and determine how it will fit with other proposals being reviewed.
There will be two plenary sessions at the conference and some submitted papers might be selected for plenary presentations. If you wish for us to consider your paper for a plenary session, please indicate that desire on your submission.
Please e-mail submissions (in .doc, .docx, or .pdf format) to email@example.com by April 1, 2013. If you have any questions about the conference, please direct them to Kimberly Mutcherson at firstname.lastname@example.org.
Though the conference will have a primary focus on law, we also invite submissions from other disciplines including philosophy, the social sciences, critical cultural studies (gender and sexuality studies, disability studies, critical race studies, etc.), public health, and others.
We urge you to interpret the conference theme broadly. While this conference emerges from the Roe anniversary, we seek to initiate and support discussion across a wide range of reproductive justice topics and want to build a conference program that looks forward to the world created in the wake of Roe rather than focusing narrowly on the Roe decision itself or on issues related to abortion. Possible topics for inclusion on the program include:
- Burgeoning markets in reproduction fueled by assisted reproductive technology (“ART”), including cross border fertility care (“reproductive tourism”), the market in gametes, creating of kinship ties without biological or genetic links, and informed consent in the fertility industry;
- Public health approaches to abortion, contraception, assisted reproduction, pregnancy and childbirth;
- Race, class, sexual orientation and access to childbearing and the economics of reproduction;
- The medical market and insurance issues related to abortion/contraception, prenatal care, childbirth and fertility services;
- Reproductive justice in the courts, including the future of the Supreme Court’s evolution on abortion access, treatment of pregnant prisoners, access to contraception, reproductive health services for undocumented immigrants, prenatal testing, etc.;
- Issues of abortion access, including training for a new generation of abortion providers, harassment of providers, and TRAP laws;
- Racialized and woman protective arguments against abortion and their impact on abortion access and reproductive health;
- Familial privacy and the state, including the relationship between access to reproduction and parenting and the power wielded by child protective services;
- Intimate partner violence and reproduction;
- Affordable Care Act implications for reproductive health services;
- Pregnancy and the workplace; and
- Human rights discourse and access to reproductive health services.
There may be a publishing opportunity for interested conference participants. We will share more information about that possibility with panelists whose work is selected for inclusion in the conference program.
* For those unfamiliar with our campus, we are located a few short minutes from Philadelphia, Pennsylvania. Amtrak’s 30th street station is a 10-minute cab ride from campus and the Philadelphia International Airport is approximately 20 minutes from campus by cab. Philadelphia offers a wealth of cultural opportunities, including world-class museums, fine dining, theater, and an extensive public park system that can be enjoyed while away from the conference (http://www.visitphilly.com/).
Friday, February 15, 2013
Ann Cammett (University of Nevada, Las Vegas, William S. Boyd School of Law) posted her article "Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt," 117 Penn State Law Review 349 (2012), on SSRN. Here is the abstract:
The disenfranchisement of felons has long been challenged
as anti-democratic and disproportionately harmful to communities of color.
Critiques of this practice have led to the gradual liberalization of state laws
that expand voting rights for those who have served their sentences. Despite
these legal developments, ex-felons face an increasingly difficult path to
regaining the franchise. This article argues that, for ex-felons in particular,
criminal justice debt can serve as an insurmountable obstacle to the resumption
of voting rights and broader participation in society. This article uses the
term “carceral debt” to identify criminal justice penalties levied on
prisoners, “user fees” assessed to recoup the operating costs of the justice
system, and debt incurred during incarceration, including mounting child
In recent years, another disturbing voting rights challenge has emerged that has received little attention from scholars. State appellate and federal courts across the country have affirmed the constitutionality of statutes that require ex-felons to satisfy the payment of all carceral debts in order to resume voting privileges. Such a paradigm has a clearly differential impact on the poor: if only those who can pay their debts after a criminal conviction can regain the right to vote, those who cannot will remain perpetually disenfranchised, rendering them “shadow citizens” and raising a host of policy and constitutional questions.
Saturday, February 2, 2013
Marian Robinson’s status as the live-in First Grandmother is an example of a growing trend in the United States - the multigenerational family. The 2010 United States Census Data reflects that the number of households with multiple generations living under one roof has increased by 25% this decade. Mrs. Robinson also reflects another new development in American families: grandparents helping their adult children with caregiving. More than 70% of grandparents are taking care of their grandkids on a regular basis, and 13% are primary caretakers. Many grandparents treat their role as caregiver like a profession, and they sacrifice jobs, residences, money, time, and part of their autonomy in order to ‘retribe’ their family. Often times, these grandparents are not as fortunate as Mrs. Robinson, and their selfless commitment to family not only reduces their current income, but also negatively affects their retirement funds and ability to care for themselves in the future. As the number of citizens over the age of sixty-five increases and the average age of grandparents decreases, these fundamental changes in the family caregiving network pose a threat to a significant portion of our population, particularly women, who make up the majority of grandparent caregivers.
The impact of this family evolution on the older generation has yet to be examined from a legal perspective that goes beyond the traditional spectrum of family law. This article fills a gap in the legal analysis of family law reform in that it focuses on two underdeveloped topics: grandparents who are an integral part of the family, and the impending crisis of a significant aging population. This Article explores how employment, tax, and housing laws discourage intergenerational caregiving. Although research shows that grandparent involvement in their grandchildren’s lives results in multiple positive outcomes, government support for the extended family network lags behind the social framework of today. This Article examines how other modern countries in Europe and Australia have adopted laws that reduce the economic strain of grandparent caregiving. It further argues that the transubstantive nature of family law requires advocacy for grandparents beyond custody and visitation rights. Expanding social welfare for grandparent caregivers will revise the concept of the system of laws that supports family care work and can reform the administration of federal, state, and local regulations governing work and family.
Friday, February 1, 2013
Melissa L. Breger (Albany Law School) has posted "The (In)Visibility of Motherhood in Family Court Proceedings," 36 New York University Review of Law & Social Change, 555 (2012) on SSRN. Here is the abstract:
Issues of bias in Family Court in the context of race and overrepresentation of people of poverty have been extensively explored in academic literature. There is arguably a parallel overrepresentation of women, and particularly mothers, in our Family Courts. I question whether the Family Court would function as it currently does without mothers as its core litigants. Specifically, I delve into the implicit gender biases inherent in societal expectations of mothers as all-knowing, ever-nurturing, and ever-protective of their children – expectations that often ignore the complexities and nuances of motherhood. To illustrate my thesis, I focus on a case that I was involved in over a decade ago, which was subsequently featured in Professor Dorothy Roberts’ book: Shattered Bonds: The Color of the Child Welfare System. Through this narrative, the Article raises critical questions regarding the influence of implicit gender bias and the construct of motherhood in Family Court proceedings. As a result of its predominance, has the gender of Family Court litigants become virtually invisible? How might we identify, confront, and address this (in)visibility in our family justice system?
Thursday, January 31, 2013
Feuer: "How the Supreme Court and the Department of Labor May Dispel Myths About ERISA’S Family Law Provisions and Protect the Benefit Entitlements that Arise Thereunder"
Albert Feuer has posted his paper entitled "How the Supreme Court and the Department of Labor May Dispel Myths About ERISA’S Family Law Provisions and Protect the Benefit Entitlements that Arise Thereunder" 45 J. Marshall L. Rev. 635 (2012) on SSRN. Here is the abstract:
This Article discusses the interaction between ERISA
and family law (i.e., domestic relations law and estates law). The Supreme
Court and the US Department of Labor (“DOL”) may improve the practice of both
ERISA and family law by dispelling myths that they have reinforced.
First, the Court incorrectly asserted that the Retirement Equity Act of 1984 (“REACT”) “enhanced protection to the spouse and dependent children in the event of divorce or separation, and in the event of death the surviving spouse.” This assertion has encouraged plan administrators and other courts to find that domestic relations orders (“DROs”) govern an excessively broad class of ERISA pension and life insurance benefits. However, REACT, like ERISA, was a reaction to the inadequacies of state law and prior federal law pertaining to domestic relations and estate law. Thus, it similarly circumscribed the role of state law and increased substantive protections for ERISA participants and beneficiaries.
Second, the Court added a gloss to ERISA in non-family law contexts that emphasizes the importance of limiting the cost burdens imposed on employers by ERISA, which, if excessive, would discourage employers from establishing and maintaining employee benefit plans. This gloss has encouraged other courts to lose sight of the leitmotif of ERISA, protecting plan benefits of participants and beneficiaries. Thus, courts have wrongfully permitted individuals to use superseded (state family law or federal common law) ownership claims to obtain benefit entitlements from the recipients of those entitlements rather than the plans. Such holdings violate Supreme Court decisions extending over more than a hundred years, which consistently protected ERISA entitlements and other federal entitlements, before and after their distribution.
The DOL has created issues by both its actions and inactions. First, the DOL incorrectly asserted that the ERISA benefit claim provisions should not govern plan reviews of DRO for compliance with the pertinent ERISA requirements, the qualified domestic relations order (“QDRO”) requirements, but has failed to present an alternative set of review provisions for plans to follow. This has created unnecessary issues concerning the roles of plan administrators, participants, their families, and courts in such reviews Second, the DOL has provided only nonbinding, informal guidance to the general public rather than extensive DOL regulations with respect the QDRO requirements. This has created unnecessary issues for persons seeking to prepare a DRO that complies with the pertinent ERISA requirements, and for plan administrators responding to such requests.
Wednesday, January 30, 2013
Oldham: "Would Enactment of the Uniform Premarital and Marital Agreement Act in All Fifty States Change U.S. Law Regarding Premarital Agreements?"
J. Thomas Oldham posted his article "Would Enactment of the Uniform Premarital and Marital Agreement Act in All Fifty States Change U.S. Law Regarding Premarital Agreements?" on SSRN. Here is the abstract:
This article summarizes the provisions of the Uniform Premarital and Marital Agreement Act, which was promulgated by the Uniform Law Commission in the summer of 2012. It compares these provisions to the Uniform Premarital Agreement Act, the rules currently applicable in states that did not adopt the UPAA, and the approach applied in other countries to premarital agreements contemplating divorce. The article summarizes the new requirement in the UPMAA that, to be enforceable, each party must have had “access to independent counsel,” and discusses how courts might construe such a provision.
Tuesday, January 29, 2013
A new paper, written by Margaret A. Knight and DeLawnia Comer-HaGans, aims to summarize literature review findings about barriers employers face with providing Domestic Partner Benefits and discuss some advantages of providing some benefits. Exploring the DPB issue provides insights into “sexual orientation, marital status, legal definitions and requirements, and benefit equity” issues. Download Domestic Partner Benefits.
Wednesday, January 9, 2013
Professor Nancy E. Dowd has recently published “Fatherhood and Equality? Reconfiguring Masculinities,” which was a Donohue Lecture at Suffolk University Law School, and is in 45 Suffolk University Law Review 1047 (2012). In this article, Professor Dowd sets out the asymmetric pattern of men’s caretaking as compared to women’s caretaking, and raises the issue of why greater equality has not been achieved in care as women’s participation in the workforce has increased. Professor Dowd argues that not only is this linked to the lack of institutional and structural supports for parenthood, which leads to gendered outcomes in who does care, but in addition, and perhaps most importantly, the barrier to care is cultural, linked to masculinities norms. Professor Dowd sets out the barriers to care linked to masculinities, and suggests a further analysis linked to vulnerability and its connection to caregiving. Changes in masculinities, therefore, are critical to changing the pattern of men’s caretaking, and Professor Dowd sets out ways that this might be accomplished.
Sunday, December 2, 2012
Courtney G. Joslin (University of California, Davis - School of Law) has posted "Marriage, Biology, and Federal Benefits" (forthcoming Iowa Law Review). Here is the abstract:
This Article approaches the topic of same-sex marriage from a novel perspective by scrutinizing the historical accuracy of primary defense proffered by same-sex marriage opponents – “responsible procreation.” In the context of challenges to Section 3 of DOMA, responsible procreation posits that the federal government’s historic purpose in extending marital benefits is to single out and specially support families with biologically-related children. Because same-sex couples cannot fulfill this long-standing purpose, it is permissible to deny them all federal marital rights and obligations. While advocates disagree about whether and to what extent DOMA furthers this alleged federal interest, to date, all sides have accepted this historical account.
This Article is the first to interrogate the accuracy of this account. To do so, the Article examines two of the largest and most important federal benefits programs – Social Security benefits and benefits for active and retired members of the U.S. military. This analysis demonstrates that Congress has not and does not condition the receipt of federal family-based benefits on biological parent-child relationships. To the contrary, Congress long has implicitly and explicitly extended such benefits to families with children known to be biologically unrelated to one or both of their parents. This Article thus reveals that responsible procreation is based on myth, not history and tradition.
Sunday, November 25, 2012
The story of equal protection’s demise is a familiar one. It has been decades since any new group has been afforded heightened scrutiny. Even for established protected groups, retrenchment in applicable standards has devitalized meaningful equal protection coverage. As a result, scholars such as Kenji Yoshino have contended that we are at “the end of equality doctrine as we have known it” — that we are, in effect, in a post–equal protection era. In this new era, there are minimal opportunities for securing protections under the Equal Protection Clause, and the liberty protections of the Due Process Clause have superseded equality as the primary engine of constitutional change. Yoshino names this new era the “new equal protection” and suggests that subordinated groups focus their efforts on liberty — rather than equality — in seeking civil rights protections.
This Essay suggests that reports of equal protection’s demise — and of liberty’s ascendancy — may be premature. Using the LGB marriage rights movement as a focal point — and in particular the six cases pending certiorari review at the Supreme Court this term — this Essay explores the possibility that full equal protection inclusion for new groups remains plausible, and that, indeed, the LGB rights movement may be on the cusp of securing such inclusion. The Essay discusses the implications of this possibility for Yoshino’s framework and, in particular, the strategic risks that may attach to relying on liberty-based arguments for a group that is on the cusp of achieving formal equality.