Faith-Based Emergency Powers

This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a legal strategy in the culture wars. This typically involves carving faith-based exceptions to rights of women and LGBT people. The novel concept of Faith-Based Emergency Powers is developed in this Article through an analogy to “traditional” emergency powers. In the war-on-terror, conservatives have argued that judges, legislators and the public must defer to the President and the executive branch in matters involving national security. As scholars have shown, this position has three key components: (1) a rhetoric of war, emergency or catastrophe; (2) a legal argument for suspension of existing human rights; and (3) a designation of decision-makers in real or perceived emergencies who are allegedly more qualified than courts or legislatures to address the national-security emergency. The consequence is temporary suspension of human rights in real or perceived national-security emergencies. The principal claim of this Article is that in contemporary culture wars, conservative politicians, lawmakers, and litigants have imported these emergency powers rationales to a range of legal contexts including marriage-equality, the Affordable Care Act (ACA), and general antidiscrimination laws. For example, the Supreme Court has recently granted certiorari in the case of a Denver baker who refused to sell a wedding cake to a same-sex couple. In its 2017-2018 session the Court will decide whether an individual’s religious or moral objection to same-sex marriage trumps state public accommodations laws. In this case and in many others, the conservative position typically follows the rationales of traditional emergency powers in (1) applying rhetoric of war and emergency; (2) arguing for suspension of legal rights of women and sexual minorities and; (3) claiming deference to religious or moral dissenters. The end goal, as in the war-on-terror, is to suspend or diminish legally recognized individual rights. The Article concludes that lawmakers ought to defend the rule-of-law and individual rights by rejecting Faith-Based Emergency Powers

Social policy and the changing concept of child well-being. The role of international studies and children as active participants

Social policy refers to the overall actions and services a society takes to ensure the well-being of its citizens. As such, children are at the forefront of social policy, and investing in them is both crucial for their current well-being and an investment toward the future. However, the concept of child well-being is changing. Scholars have termed this shift as one of moving from child-saving to child development or from child welfare to child well-being. This changing context, which in many ways is still developing, is complicating the effort to develop appropriate indicators and outcome measures of children\u27s quality of life and status and consequently it is complicating the evaluation of social policy and its contribution. This paper presents the changing context of children\u27s well-being, the major shifts that have occurred in the field, and their implications for evaluating social policy. It then goes on to discuss the potential of international comparisons in evaluating social policies and in particular the new role for children\u27s subjective reports on their well-being as a tool for evaluating social policy. In that regard, the paper presents the International Survey of Children\u27s Well-Being and concludes with a call for new policies that will adhere to the new concept of children\u27s well-being and serve to create a better life for children. (DIPF/Orig.

In the Shadow of a Myth: Bargaining for Same-Sex Divorce

This Article explores a relatively new phenomenon in family law: same-sex divorce. The Article\u27s central claim is that parties to the first wave of same-sex divorces are not effectively bargaining against the backdrop of legal dissolution rules that would govern in the absence of an agreement. In other words, to use Robert Mnookin and Lewis Kornhauser\u27s terminology, they are not bargaining in the shadow of the law. Instead, the Article argues, many same-sex couples today bargain in the shadow of a myth that same-sex couples are egalitarian—that there are no vulnerable parties or power differentials in same-sex divorce. The Article shows how a myth of egalitarianism undermines current bargaining for same-sex divorce. First, the myth leads to what the Article calls “divorce exceptionalism,” that is, when a party claims that existing marriage dissolution rules do not apply in same-sex divorce because they were designed to remedy the nonegalitarian conditions of different-sex marriages. Divorce exceptionalism disables effective bargaining because without default legal rules there is nothing to guide the bargaining process. Second, the myth of egalitarianism eliminates key bargaining chips: under a presumption of formal equality neither party really has anything to “give” or “get” in the bargain for divorce. Finally, the myth, combined with the general fog of uncertainty regarding how courts will treat same-sex divorces, may lead to increased strategic behavior. The Article proposes a realistic solution, arguing that the legal actors who participate in same-sex divorce, including lawyers, mediators, courts, and the parties themselves, should reject divorce exceptionalism and apply ordinary divorce rules. It also proposes to protect vulnerable parties by extending to same-sex divorce the current trend toward joint-custody presumptions. The myth of egalitarianism in same-sex couples, which was quite helpful in achieving marriage equality, is now haunting the first wave of same-sex divorces and harming vulnerable parties. It is time to let it go and address the reality of same-sex relationships

Legalism and Decisionism in Crisis

In the years since September 11, 2001, scholars have advocated two main positions on the role of law and the proper balance of powers among the branches of government in emergencies. This Article critiques these two approaches-which could be called Legalism and Decisionism-and offers a third way. Debates between Legalism and Decisionism turn on (1) whether emergencies can be governed by prescribed legal norms; and (2) what the balance of powers among the three branches of government should be in emergencies. Under the Legalist approach, legal norms can and should guide governmental response to emergencies, and the executive branch is constrained by law in emergencies. In contrast, under the Decisionist approach, legal norms cannot respond to all emergencies, and therefore the executive branch is and should be the primary decision-maker in emergencies. Legalists emphasize the importance in emergencies of norms, and Decisionists emphasize the importance in emergencies of decisions. This Article shows not only the disagreements between Legalism and Decisionism but also the three key political assumptions that they often share. First, they agree that emergencies trigger a necessity for security measures that may curtail civil liberties. Second, they perceive public enemies as distinct from private enemies. Third, they share the view that the primary goal of the state and its laws is the prevention of future catastrophes. This Article offers an alternative approach, which I call Humanist Decisionism. Humanist Decisionism departs from both Legalism and Decisionism in its attempt to replace the prevailing politics of necessity, enmity, and catastrophe with a politics of friendship and hospitality. This approach has normative implications for the desirability of the legal distinction between public and private enemies, for the level of judicial scrutiny regarding the existence of an emergency, and for the possibility of adopting political and legal measures of friendship and hospitality towards the so-called enemy

Screening Historical Sexualities: A Roundtable on Sodomy, South Africa, and Proteus

Proteus (2003; 100 min., Canada and South Africa) is a low-budget feature film, directed by John Greyson (Toronto) and Jack Lewis (Cape Town), that made the international rounds of “art cinema” and queer festivals in 2003 and 2004, with limited theatrical release in New York, Toronto, and other cities. The film advances Greyson’s and Lewis’s experiments with political essay-narrative forms both in their respective documentary, experimental, and dramatic videos dating back to the early 1980s (including Lewis’s Apostles of Civilized Vice [1999]) and in Greyson’s theatrical feature films beginning with Urinal in 1988. Based on an early-eighteenth-century court record, Proteus narrates the meeting, sexual relationship, and eventual trial and execution for sodomy of two prisoners in the Dutch Cape Colony, the Dutchman Rijkhaart Jacobsz and the Khoi Claas Blank. Subsidiary narratives focus on the Scottish botanist Virgil Niven, who observed the prisoners, and on the contemporaneous crackdown on sodomites in Amsterdam. GLQ initiated the following “virtual conversation” among the two directors, Israeli queer legal theorist Noa Ben-Asher, American fi lm scholar R. Bruce Brasell, American film critic Daniel Garrett, and South African historian Susan Newton-King. Though it will “spoil” the plot for readers who have not seen the movie, we offer it as a lively debate about one of the more interesting entries in the new “new queer cinema.” The debate explores the precarious and artful interrelationship of histories, nations, narratives, and the law; cinematic intent and spectatorial interpretation; same-sexuality, conjugality, and difference; and even, as one participant dares to put it, love

Regulating in a Radioactive World: the FDA and Radionuclide Contamination

This paper traces the historical development of FDA regulation of radionuclide contamination of food, a subject that received surprisingly scant attention in the legal literature. As the agency has remolded its policies in response to successive crises, it has had to be particularly mindful of the public relations implications of its actions, given the fears surrounding nuclear radiation. This paper argues that in light of the unique challenges posed by radionuclide contamination—namely, the persistent scientific uncertainty about the effects of radiation, and the cognitive biases that lead the public to overestimate the risks involved—the FDA should seek to better coordinate its radiation contamination policy with other agencies, and, more controversially, develop a policy of greater circumspection in release of information to the public

Conferring Dignity: The Metamorphosis of the Legal Homosexual

The legal homosexual has undergone a dramatic transformation over the past three decades, culminating in United States v. Windsor, which struck down Section 3 of the Defense of Marriage Act (DOMA). In 1986, the homosexual was a sexual outlaw beyond the protection of the Constitution. By 2013, the homosexual had become part of a married couple that is “deemed by the State worthy of dignity.” This Article tells the story of this metamorphosis in four phases. In the first, the “Homosexual Sodomite Phase,” the United States Supreme Court famously declared in Bowers v. Hardwick that there was no right to engage in homosexual sodomy. In the second, the “Equal Homosexual Class Phase,” the Court in Romer v. Evans cast the legal homosexual as a member of a “class of citizens” whose exclusion from anti-discrimination protections the Constitution could not tolerate. In the third, the “Free Intimate Bond Phase,” the Court shifted its focus in Lawrence v. Texas to an enduring intimate bond involving private sexual acts protected from government intrusion. In the fourth and current phase, the “Dignified Married Couple Phase,” the Court in United States v. Windsor validated the decision of several states to “confer” upon homosexuals “a dignity and status of immense import.” The heart of the Article is an analysis of this final phase. Although Windsor is an important civil rights victory, the Court’s opinion ushers in important consequences for the legal homosexual. In the process of dignifying the same-sex couple, the Court erased the terms “homosexual” and “lesbian,” cast marriage as an elevated moral state, and, most importantly, promoted a concept that the Article calls a “weak dignity.” Windsor’s dignity is weak in three ways. First, human dignity was not understood by the Court as inherent in all humans. The Court instead assumed that the State confers dignity upon individuals. Second, Windsor’s concept of dignity is much narrower than theories promoted by contemporary moral and legal philosophers. Third, Windsor adopted a rhetoric of injury and pity that presents all those in same-sex relationships and their children as the wounded and humiliated victims of DOMA. The Article concludes with suggestions on how advocates and courts applying Windsor can employ the concept of equal dignity while moving beyond Windsor’s weaknesses

The Curing Law: On the Evolution of Baby-Making Markets

The article offers a new paradigm to examine the legal regulation of reproductive technologies. The main argument is that a cure paradigm has shaped historical and current legal baby-making markets. Namely, reproductive technologies that have historically been understood as a cure for infertility (such as sperm donations and egg donations) have developed into market commodities, while others (such as full surrogacy) which have not been understood as a cure, have not. The article examines and critiques the cure paradigm. Specifically, the article challenges one current manifestation of the cure paradigm: the legal distinction between \u27full surrogacy (where a surrogate is impregnated using her own ova) and gestational surrogacy (where an embryo is created in vitro and then transferred into the surrogate\u27s uterus). Gestational surrogacy has been established by many state courts and legislatures as a legitimate means of curing female infertility, while full surrogacy has generally been either prohibited or deemed unenforceable. This distinction is problematized in this article not only because it is based on contestable values, but also because it has produced serious market failures that have effectively excluded many potential participants from entering baby-making markets. Thus, the article argues that it is time to reevaluate the cure paradigm

The Two Laws of Sex Stereotyping

This Article offers two main contributions to the study of sex stereotyping. First, it identifies an organizing principle that explains why some forms of sex stereotyping are today legally prohibited while others are not. Second, it argues for a shift in the current rights framework—from equal opportunity to individual liberty—that could assist courts and other legal actors to appreciate the harms of currently permissible forms of sex stereotyping. Commentators and courts have long observed that the law of sex stereotyping has many inconsistencies. For instance, it is lawful today for the state to require that unwed biological fathers, but not mothers, establish a relationship with a child as a condition for parental rights, but it is unlawful to exclude fathers from the category of “primary caregiver” for medical leave purposes. It is lawful to deny a female guard a position at an all-male prison but unlawful to refuse to hire a woman as a researcher for a physics clinic. It is lawful to post a “men only” sign on a bathroom door but unlawful to post the same sign on a courthouse door. This Article offers an organizing principle that explains these seeming inconsistencies. The main thesis is that there are today two primary branches of sex-stereotyping law: one that prohibits stereotyping and one that permits it. The prohibiting branch reflects an event in antidiscrimination law that began in the 1960s and involved integrating the private sphere of the family with the public spheres of the market and political life. This event involved three steps: (1) a new rationale regarding the harm of sex stereotyping—anti-subordination; (2) a new concept of gender—gender role; and (3) a new articulation of an equality principle—equal opportunity for women to participate in the market and for men to participate in domestic activities. These shifts produced statutes and decisions that rejected traditional division-of-labor stereotyping. In the same years, however, a parallel branch of permissible sex stereotyping flourished. This branch includes mandatory appearance codes in the workplace, schools, and prisons; denial of parental rights of unwed fathers; and sex segregation in bathrooms, locker rooms, prisons, and the military. This Article argues for a shift of focus in the law of sex stereotyping. It underscores the limits of an equal opportunity framework and argues that an individual liberty framework better captures the harms of many individuals who are today subjected to currently lawful forms of body stereotyping