Out of the Closet and Into the Light: The Legal Issues of Sexual Orientation

Saint Louis University Public Law Review
Volume XXIV, Issue 1
Trisha L. Strode, Managing Editor

Issues affecting same sex couples and their families have been at the forefront of America’s attention in the past few months. Matters such as employment benefits for same-sex partners, discrimination based on sexual orientation, adoption by same-sex partners, and marriage by same-sex partners have been dominating discussions in our media, newspapers, and even lunch tables. Recent decisions by the Massachusetts supreme court in recognizing same-sex marriages and by the United States Supreme Court in outlawing state sodomy laws have helped to move America in the direction of establishing equal rights for same-sex couples and their families.

This fall, the Public Law Review will address this timely and important issue. Distinguished scholars, practitioners, and community members from throughout the country will contribute their thoughts and ideas on sexual orientation and the law. These articles will be published alongside those of the Public Law Review’s student staff to form the first issue of 2005, with publication anticipated in January 2005.

Professor Elvia Arriola

Professor Elvia R. Arriola is an assistant professor of law at Northern Illinois University, where she teaches gender and the law, domestic violence, public interest litigation, and a research seminar on women, law and the global economy.  She obtained her law degree from the University of California-Berkeley School of Law and her master’s degree in history from New York University. Her publications deal with a variety of subjects, including civil rights, women, queer legal theory, and human rights.

Professor Arriola will be authoring an article entitled “ Democracy and Dissent: Challenging the Solomon Amendment as a Cultural Threat to Academic Freedom and Civil Rights.”

This article begins by discussing changes that have occurred in Americans’ civil rights since the terrorist attacks of September 11 th. The author argues that the war on terrorism is being used as a justification for many governmental policies, which are supported by a “culture of fear” that threaten American civil liberties such as the First Amendment’s right to dissent. This article also discusses a lawsuit against, among others, the Department of Defense opposing the enforcement of the Solomon Amendment, which allows for a university to be denied funding if the military is denied access to the university for recruiting. Opposition has arisen to allow military recruiters access to universities because of its discrimination against openly gay individuals. The author then examines what might explain the above policy of not allowing openly gay people in the military. Later, the author discusses the recognition of gay marriage that has occurred in some states. The article concludes by noting the irony between the efforts of the United States in the War in Iraq to defend the freedom of the people in Iraq, while domestically, there is an effort in opposition to gay marriages; specifically the author writes of an irony between the United States’ effort to create a global democracy while there is an effort in the United States to “restrict the rights of gay and lesbian citizens.”

Professor Patricia Cain

Professor Patricia Cain is Vice Provost and Aliber Family Chair in Law at the University of Iowa. Professor Cain's teaching and scholarly interests include federal taxation, wills and estates, property, feminist legal theory, and lesbian and gay legal issues. She served on the board of directors of Lambda Legal Defense and Education Fund for seven years and is a Past President of the Society of American Law Teachers. She is also a member of the American Law Institute. Recent publications include Rainbow Rights: The role of lawyers and courts in the lesbian and gay civil rights movement (Westview Press 2000), and numerous articles on tax law, feminist legal theory, and the rights of unmarried couples.

Professor Cain will be co-authoring a review essay with Professor Jean Love entitled “One Wedding and a Revolution: a film by Debra Chasnoff.”

The authors present a review of a recent film “One Wedding and a Revolution”, which chronicles the marriage of Del Martin and Phyllis Lyons, who were the first same-sex couple to be issued a marriage license in San Francisco, after Mayor Gavin Newson ordered his staff to start issuing such licenses last February. Mayor Newsom had concluded that the California marriage statute, which does not allow same-sex marriages, was unconstitutional. Four thousand and thirty-six same-sex marriages followed. The film ends by pronouncing that the legality of these marriages will be determined by the courts. The authors describe the subsequent court battles in California as well as those in other states where local authorities have permitted same-sex marriage licenses to be issued. While the Supreme Court of California has already ruled against the validity of the four thousand and thirty-seven same-sex marriage licenses in California, it has yet to determine the ultimate question of whether Mayor Newsom was correct in his conclusion that the marriage statute is unconstitutional because it discriminates against same-sex couples.

Professor John Culhane

Professor Culhane is a Professor of Law at Widener University School of Law and a Lecturer at the Yale University School of Public Health. He has written and spoken extensively on the rights of same-sex couples, including articles on same-sex marriage and on the tort law's treatment of relational interests between such couples.

Professor Culhane will be authoring an article entitled “ Bad Science, Worse Policy: The Exclusion of Gay Males from Donor Pools.”

This article discusses the exclusion of virtually all gay men from the eligible pool of blood and anonymous sperm donors. While the focus has often been on the rights of potential donors, this article emphasizes the public health costs of overbroad exclusions. These costs include not only contribution to the critical shortage of blood available for transfusions, but also, and perhaps more importantly, mistrust of public health. The author argues this discriminatory practice jeopardizes the always contingent trust that public health relies on to function. He concludes that the FDA must amend this practice of complete exclusion immediately.

William Duncan

William C. Duncan has been the executive director of the Marriage and Family Law Grant at the J. Reuben Clark Law School, Brigham Young University where he served as a Visiting Professor. Mr. Duncan previously served as the acting director of the Marriage Law Project based at the Columbus School of Law, The Catholic University of America. He has also served as counsel to the Secretary of Education’s Commission on Opportunity in Athletics. Mr. Duncan has published numerous articles in legal journals and other publications on issues related to family law and policy and the constitution. He is currently serving as a fellow for the Sutherland Institute, an independent, non-profit, public policy group that seeks lasting solutions to community problems by transcending politics.

Mr. Duncan will be authoring an article entitled “The Role of Litigation in Gay Rights: The Marriage Experience.”

This paper focuses on the debate of whether marriage should include same-sex couples. The paper begins by discussing two landmark cases in this area, the 1993 Hawaii Supreme Court decision Baehr v. Lewin, and the 2003 Massachusetts Supreme Court decision Goodridge v. Department of Public Health. The Hawaii Court branded marriage as a form of sex discrimination, but had little effect on the controversy. The 2003 Massachusetts decision ruled that the current definition of marriage failed to satisfy rational basis under the state constitution. This paper focuses on the role of the three segments of government in this area of law, from the dominance of the judiciary, to the diminished role of the legislature, to the almost non existent role of the executive branch. The author argues that this has created a power shift towards the judiciary, reducing the role of the public debate, which is not a good balance. The paper also discusses the acceptance of each state’s decisions by other states, constitutional issues, and whether this issue will ultimately be decided by the U.S. Supreme Court.

Professor Anthony Infanti

Professor Infanti is an Associate Professor of Law at the University of Pittsburgh School of Law. He is currently teaching Federal Income Tax, International Tax, Estate & Gift Tax, and Corporate Tax. Professor Infanti came to the Pitt Law faculty from the New York City office of Roberts & Holland LLP, the largest law firm in the United States engaged primarily in the practice of tax law. At Roberts & Holland, Professor Infanti's practice concentrated on international tax matters. Professor Infanti's current scholarly work focuses on two related areas: (i) the intersection of tax and comparative legal theory and (ii) critical tax theory (i.e., the impact of the tax system on traditionally subordinated groups). Professor Infanti has authored articles relating to international taxation and the application of comparative legal theory to taxation that have appeared in numerous publications. He has also authored an article examining the ways in which the treatment of same-sex couples under the Internal Revenue Code mirrors society's treatment of gays and lesbians more generally.  

Professor Infanti will be authoring an article entitled "Tax Protest, 'A Homosexual,' and Frivolity: A Deconstructionist Meditation."  

This article recounts and then ponders the story of Robert Mueller. Mueller, a gay man, spent more than a decade protesting the discriminatory treatment of gays and lesbians under the Internal Revenue Code. As a result of his tax protest, Mueller was jailed for more than a year, and then was twice pursued by the IRS for taxes and penalties. In pondering Mueller's story, Professor Infanti considers it both as a telling example of the forcible closeting of gay and lesbian issues in tax and as a signpost pointing in the direction of the next front in the battle for gay rights.

Susan Koenig

Ms. Koenig has practiced law in Nebraska for over twenty years. She formed her own firm in 1981 with an emphasis in Family Law and later expanded her practice areas to include Gay and Lesbian Rights. She is a former Adjunct Professor of Law at Creighton University School of Law, where she taught a course on Women and the Law, including family law issues of custody, domestic violence, and adoption, and is a former adjunct professor of law at University of Nebraska at Omaha School of Social Work. Ms. Koenig has presented numerous lectures and speeches on gay and lesbian rights and has several published articles in the Nebraska Lawyer. She also recently co-authored an article in the Creighton Law Review entitled “Advocacy for Nebraska Children with Gay and Lesbian Parents.”
Ms. Koenig will be co-authoring an article entitled “Miss Susan's Etiquette Tips for the Socially Conscious Judge: A Guide to Honorable Conduct toward Gays and Lesbians in the Courtroom.”

Drawing upon Susan’s years of representing gay and lesbian clients and carefully selected case law, the article encourages judges to treat gay/lesbian/bisexual/transgender (“GLBT”) parties with dignity and respect by pointing out that the practice is supported both by good manners and good law. The topic was inspired, in part, by Ms. Koenig’s interest in State v. Pattno, 579 N.W.2d 503 (Neb. 1998), where a local judge read disparaging passages from the Bible before sentencing a gay defendant. Not surprisingly, the sentence was vacated on appeal. This article also covers honorable conduct towards GLBT parties in other situations such as name changes, adoption rights, jury pool and voir dire, custody battles, and various other topics relating to GLBT jurisprudence. In so doing, Miss Susan supports her arguments by providing snapshots of state and federal case law on point.

Professor Jean Love

Jean Love is a Martha-Ellen Tye Professor at the University of Iowa College of Law. Professor Love began her legal career in private practice in Nebraska. In 1971, she taught as a Visiting Assistant Professor of Law at the University of Wisconsin. The following year she joined the law faculty of the University of California at Davis, where she taught for nineteen years. In 1991, she moved to the University of Iowa College of Law.

Professor Love teaches Torts, Remedies, Constitutional Law, Federal Courts, and Introduction to Law. She has published numerous articles focusing on tort law, particularly the question of remedies in constitutional tort litigation. She is co-author of two books on Soviet Law. She also is the co-author of Equitable Remedies, Restitution and Damages and An Introduction to the Anglo-American Legal System, both published by West Group. Her current scholarship focuses on the constitutional rights of lesbians and gay men.

Professor Love, together with Professor Cain, co-authored the review essay mentioned above entitled “One Wedding and a Revolution: a film by Debra Chasnoff.”

Vincent Samar

Vincent Samar is Adjunct Professor of philosophy at Loyola University Chicago and Adjunct Professor of Law at Chicago-Kent College of Law. He received his J.D. from Syracuse University , and his Ph.D. in Philosophy from the University of Chicago . Currently, he is pursuing an LL.M. at Harvard Law School . Dr. Samar's areas of specialization are philosophy of law, political philosophy and ethics, along with jurisprudence and sexual orientation and the law. He has also taught courses in truth, logic, introduction to philosophy, society, and classical modern: Descartes, Locke, Hume, and Kant. Dr. Samar has published two books, Justifying Judgment: Practicing Law and Philosophy (University of Kansas Press, 1998) and The Right to Privacy: Gays, Lesbians and the Constitution (Temple University Press, 1991), and edited a third, New York Times, 20th Century in Review: Gay Rights Movement (Routledge Press, 2001). He has also several articles in various journals and in other books. Currently, he is working on justifying the use of international sources in constitutional interpretation.  

Dr. Samar will be authoring an article entitled “Bowers, Lawrence and Same-Sex Marriage: A Meeting of Hard and Very Hard Cases.”  

In this article, Dr. Samar calls into question the current bases for justification of legal judgments when background views of moral standards divide between clear and disputed cases. Using three sexual orientation cases as his takeoff, namely Bowers v. Hardwick, Lawrence v. Texas, and Goodridge v. Department of Public Health, the author suggests that the courts are already moving toward using higher ordered moral theories behind obeying laws in order to guarantee human rights. Citing to an earlier work of his, the author essentially argues that this trend should continue whenever more traditional approaches fail to provide justice or to reconcile conflicting principles.

Professor E. Gary Spitko

Professor Spitko is an Associate Professor of Law at Santa Clara University School of Law. He is a graduate of Cornell University and the Duke University School of Law. Professor Spitko has published extensively in the areas of family law, inheritance law, dispute resolution and law & sexuality. Much of his recent scholarship has focused on the legal treatment of functional families, principally with respect to inheritance rights, and with respect to dispute resolution at fracture of the family. Professor Spitko teaches courses in Wills and Trusts, Family Law, Adoption and Assisted Reproduction, and Dispute Resolution.

Professor Spitko will be authoring an article entitled “ From Queer to Paternity: How Primary Gay Fathers Are Changing Fatherhood and Gay Identity.”

The article looks at how the law and society have traditionally viewed gay fathers and how the recent trend of gay men fathering children together is changing or has the potential to change those perceptions. His working theory is that when gay fathers first sought to gain rights with respect to their children, the law and society viewed them as selfish and oversexualized. The context was typically the dissolution of a male/female marriage. The courts and society viewed the gay father as sacrificing his marriage and the happiness of his child to satisfy his own sexual needs. The author explores also the extent to which gay people bought into these notions. Today, more and more, gay fathers father from the start in the context of male/male couples. The author believes this has the capacity to break down the traditional view of gay men as self-absorbed and oversexed and also has the potential to break down the gender stereotypes that we associate with parenting.  

Professor Mark Strasser

Professor Mark P. Strasser is a Trustees Professor of Law at Capital University Law School . Nationally recognized for his scholarship in family law, Professor Strasser is the author of numerous books and articles in the areas of family law, bioethics, and constitutional law. His most recent books include On Same-Sex Marriages, Civil Unions, and the Rule of Law: Constitutional Interpretation at the Crossroads (Praeger Publishers/Greenwood Publishing Group, 2002), an inaugural work in a new series on sexual diversity and the law; and Marriage and Same-Sex Unions: A Debate (Praeger Publishers, 2003), co-edited with Lynn Wardle, David Coolidge and William Duncan. Professor Strasser frequently presents papers at conferences across the country and internationally. His recent lectures have taken place at New York University Law School ; the International Lesbian and Gay Law Association Conference in Turin , Italy ; the Medical College of Wisconsin; Queen’s University in Kingston , Canada ; the University of Texas at Austin ; Brigham Young University Law School ; and Albany Law School . He also spoke before the Vermont House Judiciary Committee on interstate implications of Vermont recognizing same-sex marriages or domestic partnerships.

Professor Strasser will be authoring an article entitled “ The Lawrence Reader: Standhardt and Lewis on Women in Love.”

This article discusses two state court decisions on same-sex marriage that were decided after the Supreme Court held statutes outlawing sodomy were unconstitutional in Lawrence v. Texas. The author discusses Standardt v. Superior Court and Lewis v. Harris, in which the state courts upheld same-sex marriage bans. The author argues that even with the benefit of Lawrence to help decide whether such bans pass constitutional muster, both Courts offered implausible interpretations of the right to privacy jurisprudence which cannot account for those rights which the Supreme Court recognized as fundamental and protected by the right to privacy.

Professor Lynn Wardle

Professor Lynn Wardle is a Professor of Law at Brigham Young University Law School. He regularly teaches Family Law, International & Comparative Family Law, Children and the Law, Biomedical Ethics, Conflict of Laws and Origins of the Constitution. He has had numerous books and articles published on the topic of sexuality and the law, including Marriage and Same-Sex Unions (Lynn D. Wardle, Mark Strasser, William C. Duncan & David Orgon Coolidge eds, 2003) and Revitalizing the Institution of Marriage for the Twenty-First Century, An Agenda for Strengthening Marriage (Alan J. Hawkins, Lynn D. Wardle, & David Orgon Coolidge eds., Praeger, 2002), and has given numerous speeches and presentations, including several law school debates concerning “Should Same-Sex Marriage Be Legalized,” with Professor William Eskridge at Yale Law School, University of Virginia Law School, and Ohio State University School of Law.

Professor Wardle has authored an article entitled “Parenthood and the Limits of Adult Autonomy.”

This article begins with the assumption of a “root paradigm” of most Western cultures: a commitment to posterity, and subsequently, a commitment to the welfare of children through the institution of parenthood.  The author argues that modern Western culture presents two challenges to this “root paradigm.”  First, the value of adult autonomy, particularly in sexual relationships and as manifested by irresponsible sex such as infidelity in marital relationships, conflicts with the ideal of responsible parenthood in that it is harmful to the goal of child-rearing.  The author argues that in the conflict between these competing values, the commitment to posterity must win out over the sexual autonomy of the adult.  A second challenge to the paradigm of commitment to posterity through responsible parenthood comes through recent challenges to “fundamentally redefine” the paradigm through movements to legalize adoption by gay and lesbian couples.  The author argues that legalization of adoption by gay and lesbian couples would alter the nature of the parenthood paradigm and argues for the reinforcement of the paradigm through law.

Publication Information

The Public Law Review is an academic legal journal published by students of Saint Louis University School of Law devoted to discourse in issues of public concern.  The Public Law Review has a circulation throughout North America and around the world.  Recent issues of the Public Law Review have focused on the domestic violence and the law, the legal issues of educating our children, and children’s rights under international law.  

If you have any questions regarding this issue of the Public Law Review, please feel free to contact the Managing Editor, Trisha L. Strode (strodetl@slu.edu), or by phone in the Public Law Review office at (314) 977-3937

Contact the Public Law Review

Return to the Public Law Review Homepage

Return to the School of Law Homepage