Year: 2011
Type: article
Abstract: Drawing on sociology, queer studies, \t\t\tand legal scholarship, this Comment develops a textual methodology to study \t\t\tsexuality in court opinions. In \t\t\tparticular, this methodology uses inconsistencies between opinions to highlight \t\t\thow courts rely on cultural assumptions. \t\t\tThis Comment applies this methodology to eighteen state same-sex \t\t\tmarriage cases, identifying four analytic models of sexuality: sexuality \t\t\tconsists only of behaviors; sexuality belongs to lesbians and gays; society \t\t\tshould regulate sexuality; and marriage forms a normatively desirable model for \t\t\tsexuality. These models contribute \t\t\tsignificantly to public discourse over the meaning of sexuality. Applying sociological insights to narrow \t\t\tjudicial models of sexuality suggests that courts fail to recognize the \t\t\tdiversity of sexuality and its importance to individual identities. This Comment argues that courts should \t\t\tprotect same-sex marriage through equal protection, rather than due process, in \t\t\torder to maximize individual autonomy with respect to sexuality. Finally, the Comment considers recent \t\t\topinions that make progress towards broader judicial understandings of \t\t\tsexuality.
Source: bepress Legal Repository
Author: Jeffrey Kosbie
Institution: Positive Resource Center
Language: English
Topic: Gender and Feminist Studies
Subfield: Gender Studies
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W1581728984