Beyond Racial Precedents: Loving v. Virginia as an Appropriate Legal Model and Strategy for Same-Sex Marriage Litigation

This thesis explores how LGBT marriage activists and lawyers have employed a racial interpretation of due process and equal protection in recent same-sex marriage litigation. Special attention is paid to the Supreme Court's opinion in Loving v. Virginia, the landmark case that declared anti-miscegenation laws unconstitutional. By exploring the use of racial precedent in same-sex marriage litigation and its treatment in state court cases, this thesis critiques the racial interpretation of due process and equal protection that became the basis for LGBT marriage briefs and litigation, and attempts to answer the question of whether a racial interpretation of due process and equal protection is an appropriate model for same-sex marriage litigation both constitutionally and strategically. The existing scholarly literature fails to explore how this issue has been treated in case briefs, which are very important elements in any legal proceeding. I will argue that through an analysis of recent state court briefs in Massachusetts and Connecticut, Loving acts as logical precedent for the legalization of same-sex marriage. I also find, more significantly, that although this racial interpretation of due process and equal protection represented by Loving can be seen as an appropriate model for same-sex marriage litigation constitutionally, questions remain about its strategic effectiveness, as LGBT lawyers have moved away from race in some arguments in these briefs. Indeed, a racial interpretation of Due Process and Equal Protection doctrine imposes certain limits on same-sex marriage litigation, of which we are warned by some Critical Race theorists, Latino Critical Legal theorists, and other scholars. In order to fully incorporate a discussion of race into the argument for legalizing same-sex marriage, the dangers posed by the black/white binary of race relations must first be overcome.

Family Court Judges' Training, Background, and Child Development Knowledge: Associations with Child Custody Decision Making

Family court judges are often asked to make inferences about - or directly interview children to ascertain - children's custody preferences and their maturity to express such preferences. These estimates of children's developmental maturity are important to the judges' considerations of children's "best interests" in custody cases. The research literature describing family court judges' background, education, training, and knowledge about child development is scant. With appropriate child development knowledge, judges should be better able to identify the developmental stages at which children have the cognitive and social capabilities to communicate directly their placement wishes or concerns. The current study is the first to examine judges' estimates of - and actual tests of - their child development knowledge, their training/education, and their application of this knowledge to their decisions to involve children as participants in contested custody cases.

Perpetual Conflict or Compromise? The Cost of Domestic Legitimacy in the Realm of Women's Human Rights: A Case Study on the Right to an Abortion

With its turbulent and volatile legal evolution, the right to an abortion in the United States still remains a highly contested issue and has developed into one of the most divisive topics within modern legal discourse. By deconstructing the political underpinnings and legal rationale of the right to an abortion through a systematic case law analysis, I will demonstrate that this right has been incrementally destabilized. This instability embedded in abortion jurisprudence has been primarily produced by a combination of textual ambiguity in the case law and judicial ambivalence regarding this complex area of law. In addition, I argue that the use of the largely discredited substantive due process doctrine to ground this contentious right has also contributed to the lack of legal stability. I assert that when these elements culminate in the realm of reproductive privacy the right to terminate a pregnancy becomes increasingly unstable and contested.

Gay Parenthood and the Revolution of the Modern Family: An Examination of the Unique Barriers Confronting Gay Adoptive Parents

Abstract: In recent decades, the structure of the American family has been revolutionized to incorporate families of diverse and unconventional compositions. Gay and lesbian couples have undoubtedly played a crucial role in this revolution by establishing families through the tool of adoption. Eleven adoptive parents from the state of Connecticut were interviewed to better conceptualize the unique barriers gay couples encounter in the process adoption. Both the scholarly research and the interview data illustrate that although gay couples face enormous legal barriers, the majority of their hardship comes through social interactions. As a result, the cultural myths and legal restrictions that create social hardships for gay adoptive parents forge a vicious and discriminatory cycle of marginalization that American legal history illustrates is best remedied through judicial intervention at the Supreme Court level. While judicial intervention, alone, cannot change the reality of gay parenthood, I argue that past judicial precedent illustrates that such change can serve as a tool of individual, political, and legal validation for the gay community for obtaining equal rights.