Bridging Bisexual Erasure in LGBT-Rights Discourse and Litigation

LGBT rights are at the forefront of current legal news, with “gay marriage” and other “gay” issues visible beyond dispute in social and legal discourse in the 21st Century. Less visible are the bisexuals who are supposedly encompassed by the umbrella phrase “LGBT” and by LGBT-rights litigation, but who are often left out of LGBTrights discourse entirely. This Article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse. The Article surveys the bisexual erasure legal discourse to date, and examines the causes of bisexual erasure and its harmful consequences for bisexuals, the broader LGBT community, and jurisprudential integrity as a whole. This Article contributes to the bisexual erasure discourse through a unique examination of bisexual erasure through a survey of relevant terminology in LGBT-rights cases, including and beyond recent same-sex marriage litigation. The study documents an almost complete systemic erasure of bisexuals in briefings and opinions, including an absence of any mention of bisexuals by majority opinions in cases where the briefings have set a tone of bi erasure by arguing alternatively for “gay and lesbian” rights, “gay marriage,” or “same-sex marriage,” while completely omitting reference to bisexuals. In addition to documenting the absence of bisexuals in litigation documents (despite the actual presence of bisexuals as litigants), this Article compiles anecdotal evidence of bisexual erasure by attorneys, courts, and the media. The time is overdue for more widespread inclusion of bisexuality in LGBT-rights discourse and litigation. Increased bisexual inclusion can provide a bridge toward more meaningful, holistic, and accurate discourse on the rights of disenfranchised sexual minorities in this country. The tide may finally be turning toward increased bisexual inclusion, however, as some courts and LGBT organizations have employed more inclusive terminology, and one federal judge has explicitly recognized for the first time that bisexuals, like gays, are harmed by same-sex marriage bans. Bisexuality, the last sexual orientation that dare not speak its name, is finally claiming its seat at the table of equal liberty, dignity and respect under law and in the eyes of the LGBT-community itself. The legal community should join this move toward more honest and holistic discourse that acknowledges the equal validity of bisexuality along with other sexual orientations. This Article is one of many steps that must be taken for more meaningful and inclusive LGBT-rights discourse

Yes, Alito, There Is a Right to Privacy: Why the Leaked \u3ci\u3eDobbs\u3c/i\u3e Opinion is Doctrinally Unsound

The Essay details how the primary premises underlying the leaked draft opinion in Dobbs v. Jackson Women’s Health Organization regarding abortion rights are infirm as a matter of constitutional doctrine and precedent. It addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion. The draft Dobbs opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, the opinion claims that abortion had not been a recognized enumerated right prior to Roe, but had instead been criminalized in a number of states. Under the apparent premise that conduct once criminalized cannot subsequently be constitutionally protected as a fundamental right. Second, the opinion is grounded in an interpretation of substantive due process that only recognizes Fourteenth Amendment protections for unenumerated rights when the specific conduct-framed right for which protection is sought be deeply rooted in history

When “Riot” is in the Eye of the Beholder: The Critical Need for Constitutional Clarity in Riot Laws

In the twenty-first century, American streets are frequently filled with passionate protest and political dissent. Protesters of diverse backgrounds range from those waving flags or lying on the ground to re-enact police killings to those carrying lit torches or hand-made weapons. This Article addresses how, as between such groups, it may initially seem clear which has a propensity to engage in violent riots, but too often, “rioter” is in the eye of the beholder, with those both regulating and reporting on riots defining the term inconsistently. And ironically, while police brutality is often the subject of protests, non-violent protesters who take their outrage to the streets are frequently met with police decked out in militarized riot gear who engage in disproportionate heavy-handedness culminating in mass arrests, including of the non-violent protesters. The irony is compounded when the police turn a blind eye to comparatively violent counter-protesters, some of whom were the actual instigators of the violence for which comparatively non-violent protesters were later blamed and labeled “rioters.” This Article documents conflicting descriptions of the same protests either as riots or not, both by media sources and even by court opinions. The Article explains how the problem of inconsistent interpretations of “riot” is rooted in and aggravated by the unclear and overbroad language of a substantial number of riot laws. Whether due to sloppy drafting or less benign reasons (as may be the case with riot laws granting immunity to those who drive vehicles into crowds of protesters), such flawed legislation endangers the liberty and potentially even lives of protesters. A misplaced comma can thus potentially become a matter of constitutional crisis, as poorly drafted legislation risks violating due process prohibitions on vague laws that foster discriminatory or arbitrary enforcement, First Amendment prohibitions on overbroad laws that chill and punish constitutionally protected expression. To address the problem of inconsistent and unclear riot laws, this Article engages a comparative analysis of litigation in which riot statutes have been challenged as unconstitutional. Correspondingly, the Article also catalogs dozens of state statutes that remain on the books despite being dangerously vague or overbroad in a variety of respects. The Article proposes various specific revisions legislators should make to constitutionally flawed legislation, while also making substantive suggestions for those challenging the laws. Fundamentally, riot laws must provide sufficiently clear standards that unambiguously limit the potential prosecution of “rioters” to those with intent to commit imminent violence. Riot laws must carefully, clearly, and precisely define their key terms and delineate the intent requirements and requisite violent conduct to constitute rioting, rather than risk being struck down as unconstitutional. While there is a strong governmental interest in protecting public safety, even that interest does not excuse laws that fail to clearly define what constitutes unlawful rioting, resulting in sweeping dragnets that ensnare non-violent and violent protesters alike. It is imperative that when history has its eyes on these unfolding chapters of political dissent and division, what it records is a respect for constitutional rights, not a continued pattern of those in power violating the rights of passionate, but non-violent, protesters

Yes, Alito, There is a Right to Privacy: Why the Leaked Dobbs Opinion is Doctrinally Unsound

On June 24, 2022, the Supreme Court released the final Dobbs majority opinion, which is substantially identical to the draft opinion. Consequently, the critique contained in this essay applies equally to the final Dobbs opinion. On May 2, 2022, a draft majority opinion dated February 2022 and authored by Justice Alito in Dobbs v. Jackson Women’s Health Organization was leaked to the public. This Essay addresses the doctrinal infirmities of the underlying analysis of the draft Dobbs opinion, as well as the resulting dangers posed for the protection of fundamental privacy rights and liberties in contexts even beyond abortion. The draft Dobbs opinion bases its rationale for overruling Roe v. Wade on two deeply flawed premises. First, the opinion claims that abortion had not been a recognized enumerated right prior to Roe, but had instead been criminalized in a number of states. Under the apparent premise that conduct once criminalized cannot subsequently be constitutionally protected as a fundamental right, Justice Alito, the opinion’s author, consequently concludes that abortion rights should be returned to their purported pre-1973 status: nonexistent. Second, the opinion is grounded in an interpretation of substantive due process that only recognizes Fourteenth Amendment protections for unenumerated rights when the specific conduct-framed right for which protection is sought (i.e., the right to abortion, as opposed to the broader liberty interest in personal autonomy and privacy, which encompasses that right) must be “‘deeply rooted’ in this Nation’s history and traditions’ and ‘implicit in the concept of ordered liberty.’” The draft Dobbs opinion then concludes that for those and other reasons, Roe was an unsound, wrongly decided opinion (although the draft opinion also acknowledges that Roe followed a longer line of precedent affirming substantive due process protections for “intimate sexual relations, contraception, and marriage” ). A reported majority of Justices would consequently hold under the draft opinion that neither Roe nor the subsequent Casey decision should be honored under the Court’s longstanding practice of stare decisis. Instead, both should be overruled (assurances during their confirmation hearings that they would honor stare decisis notwithstanding). This Essay details how the primary premises underlying the draft opinion’s overruling of Roe and Casey are infirm as a matter of constitutional doctrine, precedent, and fact

Examining the impact of comorbid serious mental illness on rehospitalization among medical and surgical inpatients

Multiple barriers to quality health care may affect the outcomes of postacute treatment for individuals with serious mental illness (SMI). This study examined rehospitalization for medical and surgical inpatients with and without a comorbid diagnosis of SMI which included psychotic disorders, bipolar disorder and major depressio