In today’s decision in Griego v. Oliver, the New Mexico Supreme Court struck down state laws that limit marriage to opposite sex couples. I welcome the result, but would have preferred that the court based its decision on the ground that laws banning same-sex marriage discriminate on the basis of gender. The court ruled that […]
Archive | Sex Discrimination
Support for So-Called “Honor Killings”
By Eugene Volokh on May 2, 2013 2:34 pm in Religion, Sex Discrimination, Sexual Conduct Restrictions
The Pew Forum’s survey of international Muslim attitudes asks, among other things, Some people think that if a woman engages in premarital sex or adultery it is justified for family members to end her life in order to protect the family honor. Do you personally feel that this practice is [often justified, sometimes justified, rarely […]
Women at the Western Wall in Jerusalem
The Jerusalem Post reports (thanks to Prof. Howard Friedman (Religion Clause) for the pointer): In a groundbreaking ruling, the Jerusalem District Court upheld an earlier decision of the magistrate’s court that women who wear prayer shawls (“tallitot” in Hebrew) at the Western Wall Plaza are not contravening “local custom” or causing a public disturbance, and […]
New Scholarship on Originalism and Discrimination
By Ilya Somin on April 12, 2013 6:30 pm in Affirmative Action, Constitutional Theory, Originalism, Racial Discrimination, Sex Discrimination
For a long time, the conventional wisdom among legal scholars has been that an originalist interpretation of the Fourteenth Amendment would require courts to uphold laws that discriminate against women and laws banning interracial marriage. While these arguments were once advanced by defenders of sexism and Jim Crow laws, today they are usually used as […]
Reading the Tea Leaves in the Proposition 8 Same-Sex Marriage Oral Argument
By Ilya Somin on March 27, 2013 11:39 pm in Gay Marriage, Gay Rights, Same-Sex Marriage, Sex Discrimination
Most commentators, including the VC’s own Dale Carpenter, have concluded after the Proposition 8 oral argument that the Supreme Court is unlikely to strike down the California law banning gay marriage. I predicted such an outcome last year, and in this recent post, pointing out that the Supreme Court is unlikely to announce a nationwide […]
How to Figure Out When Laws Banning Same-Sex Marriage Became Unconstitutional and Why the Precise Date May Not Matter
By Ilya Somin on March 26, 2013 11:44 pm in Constitutional Theory, Gay Marriage, Gay Rights, Originalism, Sex Discrimination
At today’s Proposition 8 oral argument, Justice Scalia asked Ted Olson, the lawyer for the plaintiffs, “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” The intuition behind Scalia’s question is that if a law would not have been unconstitutional on the day the Fourteenth […]
Justice Kennedy on Proposition 8 and Sex Discrimination
By Ilya Somin on March 26, 2013 9:52 pm in Gay Marriage, Gay Rights, Same-Sex Marriage, Sex Discrimination
In today’s Proposition 8 oral argument on the constitutionality of California’s law banning same-sex marriage, Justice Anthony Kennedy – a key swing voter on the Court – asked whether such a law qualifies as sex discrimination, which he called a ” a difficult question that I’ve been trying to wrestle with”: JUSTICE KENNEDY: Do you […]
The Supreme Court’s Options in the California Same-Sex Marriage Case
By Ilya Somin on March 1, 2013 4:19 pm in Gay Marriage, Gay Rights, Sex Discrimination, Sexual Orientation
Georgetown law Professor Marty Lederman has a very helpful post outlining the Supreme Court’s options in the case challenging the constitutionality of California’s Proposition 8, which bans same-sex marriage in the state: [T]hese are the five options offered to the Court: (i) The Court could uphold the constitutionality of Proposition 8 — that is, hold […]
Women in Combat and the Constitutionality of Male-Only Draft Registration
By Ilya Somin on January 31, 2013 10:50 am in Conscription, Sex Discrimination, War and Armed Conflict
The Pentagon’s recent decision to open up combat roles to women has led legal scholar Gerard Magliocca wonder whether our current system of male-only draft registration is still constitutional. Conservative commentator Dave Carter predicts that the courts will rule that it is not, and women will be made subject to the draft. In the 1981 […]
Women and the Draft
By Ilya Somin on January 26, 2013 4:45 pm in Conscription, Sex Discrimination, War and Armed Conflict
The Pentagon’s recent decision to abolish most restrictions on women serving in combat leads conservative commentator Dave Carter to worry that women will now be subject to the military draft: It was 22 or 23 years ago, I think, that I wrote in the Air Force Times a cautionary article on the combat exclusion that […]
Can a State University Have a Women-Only Student Lounge?
Michigan State University apparently has a women-only student lounge — a room for studying, not a restroom or a locker room. A reader asked whether this is permissible; the answer is pretty clearly no, given the Court’s modern Equal Protection Clause jurisprudence. Sex classifications are impermissible under the Court’s precedents unless they are backed by […]
When Parents Disagree, Should Child Bear the Mother’s Last Name or the Father’s?
Veronica Goudreau and Andrew Lemieux conceived a child, Alexander. (As it happens, they were minors, in high school, but that needn’t matter for the legal analysis.) They then broke up, but Lemieux wants to help raise the child. When the child was born, Goudreau named the child Alexander Bailey Goudreau. But when the child was […]
Does DOMA Discriminate on the Basis of Sexual Orientation, Gender, or Both?
Today’s Second Circuit decision striking down a part of the Defense of Marriage Act holds that laws discriminating on the basis of sexual orientation are subject to heightened “intermediate” scrutiny. But it is not clear that DOMA actually discriminates on the basis of sexual orientation, as opposed to gender. As I explained in the context […]
Law Professor Calls for Denying Tax Exemptions to the Catholic Church, Orthodox Synagogues, and Other Groups That Discriminate Based on Sex
By Eugene Volokh on June 12, 2012 4:14 pm in Religion and the Law, Sex Discrimination, Sexual Orientation
See Caroline Mala Corbin, Expanding the Bob Jones Compromise, in Matters of Faith: Religious Experiences and Legal Responses in the United States (forthcoming, Cambridge University Press). This isn’t the first such call, but it still struck me as noteworthy. Indeed, the rationale — that exemptions are generally denied to racially discrimination groups, so they should […]
Higher Registration Requirements for Male Sex Offenders Who Committed the Offense Against a Male Victim
803 Code Mass. Regs. § 1.40(9)(c)(2) provides that, in determining a sex offender’s likelihood of recidivism — which in turn bears on what sort of registration requirements apply to the sex offender — one factor should be whether the offender is a “male offender who commits a sex offense, as defined in M.G.L. c. 6, […]