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Closer to home, The Dukeminier Awards provide a unique
educational experience for UCLA law students. In addition to a
basic sexual orientation law course, UCLA School of Law offers
an annual seminar on “Sexual Orientation Law Scholarship.” The
students in that seminar, under the instruction of our faculty,
undertake the intellectual processes involved in selecting each
year’s Award articles. They develop a universe of articles
published each year, peruse these articles to select several
dozen for closer consideration, and then spend their time in the
seminar closely reading and analyzing the chosen texts. The
seminar culminates with the students’ and faculty members’
selection of the best articles for that year, which are then
published as The Dukeminier Awards.
Having undertaken a version of this process once, we can
attest that the decisions we had to make were not easy ones. The
vast quantity of material from which we selected is a testament
to the broad range of sexual orientation scholarship produced
each year. There were many articles worthy of recognition. We
readily acknowledge that the articles we select would not
necessarily be the same choices everyone would make. However, we
can say that we gave careful consideration to a large number of
articles in the process of making our selections, and learned a
great deal from the articles we selected as well as those we did
not.
We are quite proud of the breadth and depth of the articles
selected for the Dukeminier Awards. If they show a bias, it is
for the provocative, interesting, and cutting edge, supported by
careful research, and elegant writing. We selected the articles
to be of use to those whom the journal is meant to serve:
scholars, lawyers, judges, and law students working on these
issues on a regular basis. We hope you will keep the journal on
your shelf as a resource; and we look forward to supplementing
it each year with a new and equally useful volume.
A word on technique: In publishing the Dukeminier Awards in a
single volume, we are reprinting law review articles that have
appeared in other journals. We have formatted our text so that
the original pagination is evident; this will allow legal
professionals using this volume to cite to the original law
review material, or to our own pages - whichever is more
appropriate to their task.
William Rubenstein, Williams Institute
Faculty Chair
Brad Sears, Williams Institute Director
2002-2003 Dukeminier Awards Editorial Board
 About
Jesse Dukeminier
This journal is named in memory of Jesse J. Dukeminier
(1925-2003), who was a member of the UCLA law faculty for forty
years. The journal celebrates scholarly excellence in the field
of sexual orientation, and Jesse Dukeminier was an excellent
scholar and gay man. Q.E.D.? No. His own scholarly eminence is
unquestioned, but he never wrote on topics centered on sexual
orientation. Nor was he what one would call an activist in the
cause of gay rights. His field was property law, and in that
field he was most certainly a star. His casebook, Property,
co-authored with James E. Krier, has run to five editions, the
latest published in 2002. It is, in substance and in number of
adoptions, by far the leading casebook in the field. The same
can be said of his casebook, Wills, Trusts, and Estates,
co-authored with Stanley M. Johansen (6th ed. 2000). He was a
nationally known authority on the Rule Against Perpetuities, and
he contributed to the law's development not only in his
scholarship but in the legislative process. For example, he
wrote the revision of the Rule adopted by the California
legislature. Surely, however, the explanation for dedicating
this journal to him lies elsewhere. Jesse Dukeminier was a
beloved teacher, among a handful of UCLA law teachers in the
last generation who were revered by their students. (In his case
it is not excessive to say "revered.") His sexual orientation
was no secret; his union with David S. Sanders, a prominent
psychiatrist, began around the time Jesse joined the UCLA
faculty, and was well known to all. Long before it became widely
understood that Coming Out was an important act of social and
political construction, Jesse was Out, without ceremony--indeed,
without raising the subject, unless someone else raised it
first. He went about his life, in work and in recreation, as
himself. Precisely because he was so admired, he contributed to
the cause of equal citizenship by carrying on his day-to-day
living under the assumption that his sexual orientation,
although very much a part of his sense of self, was not
especially noteworthy. For others who self-identified as gay or
lesbian or bisexual, Jesse's behavior could help to ease the way
to their own public acknowledgement of their sexual orientation.
Imagine that the year is 1973, and that you are one of Jesse's
students, a gay man or lesbian who has remained largely
closeted. You may think, "If this highly admired man is Out, why
should I not be?" And for those acquaintances who
self-identified as straight, Jesse's presence in their lives
helped them to redefine the meanings they attached to homosexual
orientation. Such a person might think, "If Jesse is gay, then
the negative things I have heard about a gay orientation have to
be false." Jesse was not vain, but he was aware of his high
standing among his students, his colleagues, and his friends.
So, without ever getting on a soapbox, he was--knowingly--a
walking advertisement for the proposition that equal treatment
for every person, of any self-identified sexual orientation, is
the proper social norm, the entitlement of all persons. The
difference in public attitudes on this subject from 1973 to 2003
is remarkable and has made itself felt in legislation and in
Supreme Court decisions. In a quiet-but-public way that was very
much his own, Jesse Dukeminier was one local leader in that
change. When the generous donation that was to become the
Williams Institute was offered to our school, Jesse Dukeminier
was one of a group of faculty who participated in the
Institute's design. He continued in active support of the
Institute until his death. The UCLA Law School community is
honored to dedicate this journal to his memory.
Kenneth L. Karst UCLA School of Law
The Dukeminier Awards Best
Sexual Orientation and Gender Identity Law Review Articles of
2006
Volume 6. 2007
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CONSTITUTIONAL TIPPING POINTS: CIVIL
RIGHTS , SOCIAL CHANGE, AND FACT-BASED ADJUDICATION, 106
COLUM. L. REV. 1955 (2006) - Suzanne B. Goldberg
Professor Suzanne Goldberg, in her article reprinted
from the Columbia Law Review, examines the process by
which courts "tip" from one understanding of a social group
and its constitutional claims to another, observing that
courts frequently focus on "facts" about a social group in
such an analysis. Professor Goldberg argues that this
"fact-based adjudication" method is flawed in that it
obscures judicial involvement in selecting among competing
norms. She considers the costs and benefits of courts using
greater candor to acknowledge the normative judgments upon
which their decisions rest.
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TRANSCENDING THE INDIVIDUALIST PARADIGM
IN SEXUAL ORIENTATION ANTIDISCRIMINATION LAW, 94 CAL. L.
REV. 1271 (2006) - Holning Lau
Professor Holing Lau, in his article reprinted from the
California Law Review, looks at the difficulty of
addressing discrimination by businesses that restrict their
goods and services to opposite-sex couples. Online dating
services, couples resorts, and dance studios frequently
enforce rules that require patrons to engage in their
activities only in opposite-sex couples, but Lau argues that
this type of discrimination cannot be addressed using the
lens of individual rights. Individuals are not prevented
from using the services based on sexual orientation, but
rather same0sex couples, or potential couples, cannot use
the services as couples. Lau introduces the concept of a
couple's aggregate rights to examine this question.
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IMMORAL PURPOSES: MARRIAGE AND THE GENUS
OF ILLICIT SEX, 115 YALE L.J. 756 (2006) - Ariela Dubler
Professor Ariela Dubler, in her article reprinted from
the Yale Law Journal, contextualizes the Lawrence
decision within "the history of attempts by federal
lawmakers and judges to define the relationships among the
genus of illicit sex, the genus of licit sex, and marriage."
Professor Dubler contrasts Lawrence with the role of
marriage in immigration legislation of the early 1900's and
judicial response to that legislation. In this context, she
views Lawrence as a case where a relationship was
considered licit by a court despite the fact that, and in
part because, it made no claim to marriage. She sheds new
light on the significance of Lawrence by helping the
reader to understand the broader context of caselaw
assessing the licit/illicit divide and the role of marriage
in transporting relationships across that line.
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FROM STONEWALL TO THE SUBURBS? TOWARD A
POLITICAL ECONOMY OF SEXUALITY, 14 WM. & MARY BILL RTS. J.
1539 (2006) - Angela Harris
Professor Angela Harris, in her article reprinted from
the William and Mary Bill of Rights Journal, offers a
cautionary approach to understanding the recent victories in
same-sex relationship recognition and sodomy
decriminalization represented by Lawrence v. Texas
and
Goodridge v. Dept. of Public Health. Professor Harris
observes the common parallels made in legal scholarship
between the civil rights victory of Brown v. Board of
Education and these two recent cases in sexual
orientation law. Examining these cases through the lens of
political economy, she observes that rather than deep and
abiding social change, legal victories like these actually
accomplish "preservation [of the status quo] through
transformation." Describing how neoliberalism has shifted
the political context of the U.S. and absorbed and
neutralized many of the apparent wins of social justice
movements of the last few decades, Harris cautions sexual
orientation law scholars to beware of the limited
significance of the changes that Goodridge and
Lawrence may actually represent.
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The Sound of (Congressional) Silence: The Broader Meaning of
'Sex' in Title VII, student note by Sergey Moudriak,
UCLA Law
Mr. Moudriak's comment examines the use of medical
evidence in Title VII claims brought by transgender
employees. He argues that courts should not rely on
controversial medical diagnoses, but rather on the sex
stereotyping prohibition laid out by Price Waterhouse v.
Hopkins to find that discrimination against transgender
employees violates Title VII.
The Dukeminier Awards Best
Sexual Orientation Law Review Articles of 2005
Volume 5. 2006
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SAME-SEX MARRIAGE AND SLIPPERY SLOPES, 33 HOFSTRA L. REV.
1155 (2005)
— Eugene Volokh
Professor Eugene Volokh, in his article reprinted from the
Hofstra Law Review, examines the plausibility of
slippery slope arguments in the same-sex marriage debate.
Opponents of same-sex marriage often make slippery slope
arguments; for example, they argue that legal recognition of
same-sex marriage will lead to legal recognition of
polygamy. These claims are usually asserted without
empirical support. Professor Volokh concludes that the
potential slippery slope harms of recognizing same-sex
marriage, "while plausible and potentially significant, are
not very likely." Professor Volokh's detailed analysis of
slippery slope arguments provides new clarity to the
same-sex marriage debate.
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SAME-SEX COUPLES: DEFINING MARRIAGE IN THE TWENTY-FIRST
CENTURY: PUTTING A PRICE ON EQUALITY? THE IMPACT OF SAME-SEX
MARRIAGE ON CALIFORNIA'S BUDGET, 16 STAN. L. & POL'Y REV.
197 (2005) —
M.V. Lee Badgett and R. Bradley Sears
Professors M.V. Lee Badgett and R. Bradley Sears, in their
article reprinted from the Stanford Law & Public Policy
Review, assess the impact the legalizing same-sex
marriage would have on California's state budget. After a
rigorous economic analysis, the authors offer a conservative
estimate: "the California state budget will benefit from an
annual net gain of approximately $123 million during the
first three years it extends marriage to same-sex couples."
Professors Badgett and Sears' article, while focusing on
California, is a template for future analyses of same-sex
marriage's effects on other state budgets. These economic
analyses allow participants in the same-sex marriage debate
to reach better-informed conclusions regarding the
desirability of same-sex marriage.
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CURRENT DEBATES IN THE CONFLICT OF LAWS: RECOGNITION AND
ENFORCEMENT OF SAME-SEX MARRIAGE: INTEREST ANALYSIS IN
INTERJURISDICTIONAL MARRIAGE DISPUTES, 153 U. PA. L. REV.
2215 — Tobias Barrington
Wolff
Professor Tobias Barrington Wolff, in his article reprinted
from the University of Pennsylvania Law Review,
focuses on whether states have the power to refuse
recognition of out-of-state same-sex marriages. Although
many scholars have written on the interjurisdictional
aspects of same-sex marriage, Professor Wolff adds new
insight to the debate. Most other scholars have made
categorical claims that states either do or do not have the
power to deny effect to out-of-state same-sex marriages. In
contrast, Professor Wolff proposes a nuanced method of
analysis that can lead to different results on a
case-to-case basis. Professor Wolff discusses what interests
courts should consider in these cases and how those
interests should be analyzed.
- CONSISTENCY, INTEGRITY,
AND EQUAL JUSTICE: A PROPOSAL TO RID CALIFORNIA LAW OF THE
LGBT PANIC DEFENSE, student note by David L. Annicchiarico,
UC Hastings
Mr. Annicchiarico's comment criticizes LGBT panic
defenses, which murder defendants argue to mitigate the
charges against them to manslaughter. A defendant who
invokes the defense argues that he killed his victim out of
panic - either because he received a same-sex sexual advance
from his victim or because he discovered that his victim was
a transgender person. Mr. Annicchiarico proposes three ways
to eliminate LGBT panic defenses in California: amending the
state's manslaughter laws, modifying jury instructions, and
modifying hate crime laws.
The Dukeminier Awards Best Sexual Orientation Law Review
Articles of 2004
Volume 4. 2006
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THE UNKNOWN PAST
OF LAWRENCE V. TEXAS, 102 MICH. L. REV. 1464 (2004) — Dale
Carpenter
Professor Dale Carpenter, in his article reprinted from the
Michigan Law Review, tells the story of Lawrence v. Texas
that is missing from both the Supreme Court’s opinion and
popular accounts of the case. Based on in depth interviews with
lawyers, police officers, and other key players in the events
that led up to the case, his article calls into question the
arresting officers’ claim that they actually saw John Lawrence
and Tyrone Garner having sex. Professor Carpenter also uncovers
the stories of the unsung heroes of Lawrence, including a
bartender and a court clerk, whose invaluable contributions in
the early stages of the litigation, until now, have been
overlooked. Told in a compelling narrative style, Professor
Carpenter’s piece adds important factual texture to our
understanding of Lawrence and the history of the gay
civil rights movement.
Professor Suzanne
Goldberg, in her article, reprinted from the Minnesota Law
Review,
asks whether, after
Lawrence v. Texas, a state’s moral agenda alone provides
sufficient
grounds to restrict
individual liberties. Although the Supreme Court has, over the
years,
relied on the rhetoric of
morality to justify legislation, Professor Goldberg reveals that
the
Court has long been
suspicious of exclusively morals-based justifications for
legislation.
Lawrence, then, may
not be the constitutional aberration Justice Scalia declares it
to be in
his dissent, but rather a
final and explicit declaration of a rule the Court has been
developing
for some time. Because
there are a number of difficulties associated with courts
reviewing
morals-based legislation,
Professor Goldberg proposes that all legislative actions, even
those
related to moral issues, should
be supported by provable facts.
Professor Laurence
Tribe, in his essay reprinted from the Harvard Law Review,
examines Lawrence v. Texas through the lens of the
Supreme Court’s substantive due
process jurisprudence. After providing a close reading
of Lawrence, Professor Tribe argues
that like the Court’s earlier substantive due process
cases, Lawrence grounds substantive
due process liberties in the self-governing nature of
personal relationships. He also
speculates that, even if it does not happen
immediately, the reasoning of Lawrence paves the
way for same-sex marriage in constitutional doctrine.
Professor
Nan Hunter, in her essay reprinted from the Minnesota Law
Review, looks at
the
implications of the Supreme Court’s constitutional analysis in
Lawrence v. Texas for
future regulations on homosexuality. Noting that the Court used
a form of heightened
scrutiny in Lawrence, she argues that the paradox of this
level of review is that while it
decriminalizes same-sex sexual relations, it simultaneously
ushers in a new legal regime that
will allow for even greater regulation of homosexuality. Unable
to rely solely on morality,
courts now will have to engage in more particularized and
context-driven evaluations of
state restrictions on homosexuality, which means that courts
will be asking more rather than
fewer questions about the lives of lesbians and gay men.
The Dukeminier Awards Best Sexual Orientation Law Review
Articles of 2003
Volume 3. 2005
- LESBIAN AND GAY FAMILIES:
GENDER NONCONFORMITY AND THE IMPLICATIONS OF DIFFERENCE, 31
CAP. U. L. REV. 691, 694, 724-47 (2003) — Carlos Ball
Professor Carlos Ball’s
article, reprinted from the Capital University Law Review,
sets out to reframe the debate over same-sex parenting.
Proponents of same-sex families have long argued that there
are no differences between children raised by gay parents
and those raised in opposite-sex households. Professor Ball
breaks from this tradition. Starting from recent studies of
gay parenting which indicate that the children of gay men
and lesbians are more likely to exhibit nontraditional
gender attitudes and behaviors, he argues that those who
support same-sex families should embrace these differences
rather than minimize them. In doing so, Professor Ball
recasts the debate over same-sex parenting as one of
parental autonomy, a principle already valued in our legal
tradition.
- "THEY SAY HE'S GAY": THE
ADMISSIBILITY OF EVIDENCE OF SEXUAL ORIENTATION, 37 GA. L.
REV. 793 (2003) — Peter Nicolas
Professor Peter Nicolas’s
article, reprinted from the Georgia Law Review, addresses an
issue that has, until now, been largely overlooked in the
judicial case law and scholarly literature—whether evidence
of a person’s sexual orientation is admissible as evidence.
Specifically, he discusses the relationship between sexual
orientation and evidentiary rules dealing with relevance,
hearsay, privilege, opinion testimony, judicial notice, and
presumptions. Professor Nicolas’s article is a good example
of sexual orientation scholarship that is rigorous,
doctrinal, and valuable both to the progress of ideas and to
the everyday practice of law.
- HASTENING THE KULTURKAMPF:
BOY SCOUTS OF AMERICA V. DALE AND THE POLITICS OF AMERICAN
MASCULINITY, 12 Law & Sexuality 271 — Marc R. Poirier
Professor Marc Poirier’s article, reprinted from the
journal Law & Sexuality, examines the Boy Scouts of
America’s ban on homosexuality. After discussing the recent
Boy Scouts litigation — including the Supreme Court's
decision in Boy Scouts of America v. Dale — Professor
Poirier recasts the Scouts' ban in terms of gender theory.
Professor Poirier contends that the Boy Scouts' policy is
just as much focused on reinforcing conventional attitudes
about masculinity as it is about the Scouts’ disapproval of
homosexuality. Positioning the Boy Scouts litigation into
the larger Kulturkampf over homosexuality, Professor Poirier
concludes that the Boy Scouts’ policy concerning
homosexuality, for all of its ill effects, will nevertheless
have the positive effect of making individuals in the
Scouting world confront and reassess their own attitudes
about gender norms and homosexuality.
- 'TIL CONGRESS DO US
PART: A PROGNOSIS FOR SAME-SEX MARRIAGE IN THE UNITED STATES
BASED ON INTERNATIONAL DEVELOPMENTS, student note by S.
Jason Comer, Tulane University Law School
The Dukeminier Awards Best Sexual Orientation Law Review
Articles of 2002
Volume 2. 2004
- COVERING, 111 Yale L.J.
769 (2002) — Kenji Yoshino
Professor Kenji Yoshino's
article, reprinted from The Yale Law Journal,
identifies three distinct ways that minorities may be
pressured to assimilate: by "converting," "passing," or
"covering." Professor Yoshino maps periods of the gay rights
movement into these three categories. He then identifies a
common thread between race, sex and sexual orientation
discrimination — namely, that all three forms can force a
person to cover or downplay one's behavior or identity. His
comparative analysis reveals that when covering is
considered, the law does not protect gay people from
unlawful discrimination as strongly as it protects racial
minorities and women. Responding to this discrepancy,
Professor Yoshino formulates a novel approach to
understanding anti-gay discrimination, which he then applies
to specific instances of race and sex discrimination. The
result is an article that will greatly advance not only
sexual orientation law scholarship, but also
antidiscrimination scholarship more generally.
- EXPORTING IDENTITY, 14
Yale J.L. & Feminism 97 (2002) — Sonia Katyal
Professor Sonia Katyal's
article, reprinted from The Yale Journal of Law and
Feminism, argues that there has been a major shift in
the global gay rights movement. Professor Katyal contends
that the gay rights movement in the United States originally
focused on securing privacy and same-sex sexual conduct
rights but has since abandoned this view. In its place, she
argues, the United States has exported — and other countries
have adopted — a model that revolves entirely around gay
identity. Professor Katyal fears that, in adopting a Western
model of gay identity, the global gay rights movement has
mistakenly shut out sexualities and behaviors that fall
outside conventional sexual orientation categories — for
instance, the identity and behaviors of transgendered
persons. Her article promotes a more inclusive model of gay
rights. In doing so, Professor Katyal both contributes to
thinking about the global gay rights movement and encourages
reflection on choices that have been made in the United
States.
- DISESTABLISHING SEX AND
GENDER, 90 CAL. L. REV. 997 (2002) — David B. Cruz
Professor David Cruz's article, reprinted from the
California Law Review,
compares the government's treatment of sex and gender to
its treatment of religion. Arguing in favor of a
"disestablishment" of sex and gender similar to the law's
disestablishment of religion, Professor Cruz formulates a
limit on the government's ability to support, define, or
reinforce prevailing gender norms. Specifically, Professor
Cruz looks at how such a disestablishment of sex and gender
would play out in three particular situations: governmental
identification of a person's sex/gender, sex-segregated
education, and the limitation of civil marriage to one man
and one woman.
The Dukeminier Awards Best Sexual Orientation Law Review
Articles of 2001
Volume 1. 2002
- Evaluating
the Sex Discrimination Argument for Lesbian and Gay Rights,
49 UCLA L. REV. 471 (2001) — Edward Stein
- Defending
the Sex Discrimination Argument for Lesbian and Gay Rights:
A Reply to Edward Stein, 49 UCLA L. REV. 519
(2001) — Andrew Koppelman
Professors Edward Stein and
Andrew Koppelman debate the wisdom of arguing that “sexual
orientation” discrimination is “sex” discrimination.
Professor Koppelman has, in a series of previous articles,
powerfully developed the relationships between sex
discrimination and sexual orientation discrimination.
Moreover, courts are increasingly recognizing this link. Yet
Professor Stein is wary of it: he argues that there are
theoretical, moral, and practical problems with the sex
discrimination argument and that there are better strategies
for ensuring lesbian and gay rights. Professor Stein’s
critique is incisive, but not so cogent as to silence
Professor Koppelman, who responds to it. This debate –
originally published in the pages of UCLA Law Review –
crystallizes an important set of theoretical and strategic
questions currently at the heart of the gay rights movement.
- Do
Gay Rights Laws Matter? An Empirical Assessment, 75
S. CAL. L. REV. 65 (2001) —William Rubenstein
Professor William Rubenstein’s
article, reprinted from the Southern California Law Review,
is empirical scholarship undertaken to have an impact on an
important national policy debate. Professor Rubenstein
collects data from states that have enacted gay rights laws;
his data demonstrate that gay people have filed employment
discrimination complaints at rates, per capita, that are
similar to the rates at which women file gender
discrimination complaints and people of color file race
discrimination complaints. Professor Rubenstein’s article
provides critical empirical support for the enactment of a
federal law banning sexual orientation discrimination in the
workplace. It is also an excellent example of how empirical
work, not yet widely undertaken in the field, can make
important contributions to gay rights issues.
- TRANSFORMING THE
DEBATE: WHY WE NEED TO INCLUDE TRANSGENDER RIGHTS IN THE
STRUGGLES FOR SEX AND SEXUAL ORIENTATION EQUALITY, 101 CO LU
M. L. REV. 392 (2001) — Taylor Flynn
Professor Taylor Flynn’s
essay, reprinted from Columbia Law Review, identifies
important linkages between transsexual rights and gay
rights. As gay rights is increasingly a field identified as
“LGBT,” Professor Flynn examines what comes under the “T” –
and shows how the rights of lesbians, gay men, and bisexuals
will be furthered by favorable outcomes in key transsexual
rights cases.
- THE USE OF CRIMINAL SODOMY
LAWS IN CIVIL LITIGATION, 79 TEX. L. REV. 813 (2001) — Diana
Hassel
Professor Diana Hassel’s
article, reprinted from Texas Law Review, could not be more
timely: as we go to press, the United States Supreme Court
is considering the fate of Texas’s sodomy law. Professor
Hassel’s article demonstrates with remarkable clarity and
power how sodomy laws are regularly used to undermine the
rights of lesbians and gay men in many legal situations.
Although gay people may rarely be arrested for violating
such laws, Professor Hassel proves the pernicious effect
they have on the lives and legal rights of gay people.
- BEYOND THE ENFORCEMENT
PRINCIPLE: SODOMY LAWS, SOCIAL NORMS, AND SOCIAL PANOPTICS,
89 CAL. L. REV. 643 (2001) — Ryan Goodman
Professor Ryan Goodman’s
article from California Law Review also looks at the effect
of sodomy laws – but focuses on the everyday lives of gay
people in South Africa. Using the craft of qualitative
sociology, Professor Goodman surveyed gay people in South
Africa both before and after the eradication of that
country’s sodomy law. He reports on the freedom South
Africans experience in their everyday lives since the State
repealed its sodomy prohibitions, and uses his research to
draw conclusions about the importance of “social norms” in
everyday life.
Fill out the form below to
receive The Dukeminier Awards, a prize journal recognizing
outstanding sexual orientation law scholarship. Annual
subscription to the journal is U.S. $20.
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