EXP-0074-S
Sexuality, Gender, and the Law
Spring 2013 Syllabus
Instructor: Elizabeth A. Leahy, Esq.
Text: William N. Eskridge, Jr. and Nan D. Hunter, Sexuality, Gender, and the Law (2d ed. 2003)
[Foundation Press; ISBN 1-58778-335-5]
Additional texts will be provided as handouts each week.
Time: Wednesdays, 6:30-9:00 PM
Contact Information:
Email: leahye@merrimack.edu
Phone: (781) 526-7756
Grading Structure:
Class Participation and Discussion
20%
Case Briefs
20%
Oral Arguments
30%
Midterm
30%
----------------------100%
Course Description:
This course will begin with an introduction to Constitutional law and develop into an
intimate study of the inner workings of the Supreme Court and its major decisions affecting sexual
orientation, gender, and fundamental rights.
Taking a case-based approach, we will study the evolution of the federal Constitution and
our legal system’s stance on such topics as marriage and divorce, pornography, the right to privacy,
sexual orientation, contraception, abortion, discrimination and gender issues. Debate and discussion
regarding the historical evolution of these issues and their current trends will be emphasized.
Class Participation:
The goal of this class is to stimulate in depth and engaging discussions relating to the
assigned reading. The cases and articles we will be reading confront a number of issues, many of
them at the forefront of our political landscape. You will be graded on your class participation, so
you are strongly encouraged to speak up each and every class. Every opinion is valued – so speak
your mind!
Case Briefs:
Each class, you will be responsible for briefing one of the assigned cases. A sample case
brief is attached at the end of the syllabus. Please follow the format of the sample in writing your
brief. Case briefs should be no more than 1 page in length. You must hand in a case brief at the
conclusion of each class.
In addition, you will be called upon to provide information from your case brief to aid in the
development of class discussion. Please come to class prepared to read from your brief.
Oral Arguments:
You will be responsible for presenting an oral argument to the class. The oral arguments
will be given at the end of the semester. Each student will present their arguments on a case of their
choosing. Instructions will be handed out separately.
Weekly Assignments:
WEEK 1: Introduction to Constitutional Law – Focus on Due Process and Equal Protection
We’ll answer “What is Constitutional Law?”, examine the Constitution, and discuss our system of government.
Introduction to Due Process and Equal Protection.
WEEK 2: Foundations of the Right to Sexual Privacy
Readings: Waking Up from the Pill – NY Mag
Case Law:
Group 1: Poe v. Ullman
Group 2: Griswold v. CT
Group 3: Stanley v. Georgia
Group 4: Eisenstadt v. Baird
WEEK 3: The Abortion Debate
Readings: In Defense of Abortion – Judith Jarvis Thomson
Case Law:
Group 1: Roe v. Wade
Group 2: Planned Parenthood v. Casey
Group 3: Stenberg v. Carhart
Group 4: Harris v. McCrae
WEEK 4: Immoral Sex – Sex Outside of Marriage, Homosexuality, Pornography
Readings: Excerpts from The Porning of America: The Rise of Porn Culture, What It Means, and
Where We Go from Here – Carmine Sarracino and Kevin M. Scott
Case Law:
Group 1: Sawatzky v. City of Oklahoma City, People v. Onofre
Group 2: Sol Stoumen v. George Reilly, Bowers v. Hardwick
Group 3: Caminetti v. United States, Powell v. State
Group 4: Marjorie Lee Thompson a/k/a Anneka DiLorenzo v. Penthouse, Lawrence v. Texas
WEEK 5: Discrimination – Sex Discrimination, Sexual Orientation Discrimination
Readings: Sticky Intuitions and the Future of Sexual Orientation Discrimination – Suzanne B.
Goldberg
Case Law:
Group 1: Frontiero v. Richardson, Boutilier v. INS
Group 2: Craig v. Boren, Watkins v. US Army
Group 3: US v. Virginia, Tanner v. Oregon University
Group 4: Ulane v. Eastern Airlines, People v. Cano Garcia
WEEK 6: Students and Sex – First Amendment, Student Expression, Academic Freedom
and School Responsibility
Readings: Excerpts from Bong Hits 4 Jesus: A Perfect Constitutional Storm in Alaska’s Capital –
James C. Foster
Case Law:
Group 1: Tinker v. Des Moines, Solmitz v. Maine School
Group 2: Fricke v. Lynch, Acanfora v. BOE
Group 3: Doe v. Yunits, Boy Scouts v. Till
Group 4: BOE v. Pico, Cohen v. San Bernadino Valley College
WEEK 7: Criminalizing Sex – Rape, Sodomy, Sex Work
Readings: What’s Wrong with Prostitution? Evaluating Sex Work – Christine Overall
Case Law:
Group 1: State v. Rusk
Group 2: In Re John Z
Group 3: People v. Liberta
Group 4: McQuirter v. State
WEEK 8: Gay Panic and Hate Crimes
Readings: Excerpts from Unfinished Lives: Reviving the Memories of LGBTQ Hate Crimes Victims
– Stephen Sprinkle
Case Law:
Group 1 and 2: Mullaney v. Willbur
Group 3: Teena Brandon v. Richardson
Group 4: Schwenk v. Hartford
WEEK 9: Sexual Orientation and the Workplace – DADT
Readings: Excerpts from Our Time: Breaking the Silence of “Don’t Ask, Don’t Tell” – JD Smith
Case Law:
Group 1: Rotsker v. Goldberg, Personnel Administration of MA v. Feeney
Group 2: Watkins v. Army, Steffan v. Perry, Norton v. Macy
Group 3: Thomasson v. Perry, Singer v. Civil Service, Shahar v. Bowers
Group 4: Lustig-Prean and Beckett v. UK AND X v. Australia
WEEK 10: Marriage – An Introduction
Readings: Excerpts from Outlaw Marriages: The Hidden Histories of Fifteen Extraordinary SameSex Couples – Rodger Streitmatter
Case Law:
Group 1: Marvin v. Marvin, Baehr v. Lewis/Miike
Group 2: In re Guardianship of Sharon Kowalski, Goodridge V. DPH
Group 3: Braschi v. Stahl Associates, Kerrigan v. Commissioner
Group 4: Irizarry v. BOE, Baker v. VT
WEEK 11: Marriage – DOMA, State’s Rights, Transgender Rights
Readings: Excerpts from My Husband Betty; She’s Not the Man I Married – Helen Boyd
Case Law:
Group 1: MT v. JT
Group 2: In re Ladrach
Group 3: Littleton v. Prange
Group 4: Karin T v. Michael T
WEEK 12: Surrogacy, Custody, and Visitation
Readings: Mrs. Kramer v. Mrs. Kramer – Newsweek
Case Law:
Group 1: In the Matter of Baby M
Group 2: Whaley v. Whaley
Group 3: Conkel v. Conkel
Group 4: Bottoms v. Bottoms
WEEK 13: Adoption and De Facto Parenting
Readings: Excerpts from The Right to Be Parents: LGBT Families and the Transformation of
Parenthood – Carlos A. Ball
Case Law:
Group 1: In re Adoption of Charles B
Group 2: VC v. MJB
Group 3: In Re MMD & BHM
Group 4: In re Adoption of Baby Z
Sample Case Brief
Roe v. Wade 410 U.S. 113 (1973) [complete name of case, citation, year of decision]
Supreme Court of the United States [name of Court issuing the decision]
Facts: [Outline the facts you feel are pertinent to the outcome of the case. Try not to regurgitate
unnecessary facts. You may use bullet points to list the facts, or write in prose.]
Issue: [The BIG question answered in the case. In most Supreme Court cases, the Court will
identify the issue by writing something to the effect of: “The issue we must decide in the case before
us is WHETHER…”. Look for the whether’s to find the issue.]
Holding: [The answer to the big question. Sometimes this will be at the very end of the case.
Sometimes you will have to search for the answer.]
Rule: [Is there a bright-line rule that comes out of this case? Examples of bright-line rules include
things such as: the Court will review cases like this under strict scrutiny, rational basis, or
intermediate scrutiny.]
Analysis: [Why did the Court decide the way it did? What factors does the Court list as contributing
to the decision? What cases? Once again, you may use bullet points to list the factors and important
points or write in prose]
**Remember, the point of a case brief is to provide an easy way for you to talk about the case in
class. Make sure you get all the important information, but try not to make it longer than the case
itself!**