Instructor: Tom Keck
Phone: 315-443-5862
E-mail: tmkeck@maxwell.syr.edu
Class meets: T, Th 2:00-3:20, HL 202
Office Hours: W 1:30-3:00, Th 10:30-12:00, EGG 510

Course Content and Objectives

In this course, we will examine a number of the most politically significant legal debates regarding sex, sexuality, sexual orientation, and gender identity. Though the issues covered will vary by semester, they will include many of the following: employment discrimination on the basis of sexual orientation and gender identity; family law and parental rights; same-sex marriage; and the right to sexual privacy. In addition to learning a good bit of the case law, we'll spend much of the semester thinking about whether rights-based litigation has been a useful strategy for achieving social and political change in the context of the LGBT rights movement.

Course Readings

Most of our readings will be found in these books, available at the SU Bookstore:

• William Eskridge and Nan Hunter. 2006. Sexuality, Gender, and the Law, abridged edition. Westbury, New York: The Foundation Press, Inc. ISBN: 1-58778-804-7. List price: $84.00.
• Ellen Ann Andersen. 2005. Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation. Ann Arbor: University of Michigan Press. ISBN: 0-47203-171-6. List price: $24.95.

Those readings which are underlined are available on the internet and are linked from the on-line version of this syllabus. These readings are every bit as important as those which appear in the books, so be sure not to neglect them.

Course Expectations

Course grades will be based primarily on a semester-long research project culminating in a 15-20 page paper.

Each student will choose one judicial decision that is related, broadly speaking, to the topic of the course. In making your choice, be sure to find a case that has some broad legal or political significance, and not one which is merely a private dispute between two individuals (though such disputes can, of course, be interesting and significant, especially for the people involved). In this regard, make sure to find a case that has (a) witnessed the participation of at least one organization that is actively involved in either supporting or opposing LGBT rights; and (b) reached a state or federal appellate court, rather than being fully and finally resolved by a trial judge.

I will explain these requirements more fully as the semester proceeds, but in the meantime, start searching for a case that interests you. To get started, try skimming the Eskridge/Hunter book, browsing some recent issues of Lesbian/Gay Law Notes, or checking out Prof. Dan Pinello's website or this Queer Legal Resources page. In addition, you might browse the websites of some of the organizations that have participated in lawsuits involving LGBT rights claims. Among the most noteworthy (on both sides) are the following:

ACLU's LGBT Project

Alliance Defense Fund

American Center for Law and Justice

Freedom to Marry

Gay & Lesbian Advocates & Defenders (GLAD)

Lambda Legal Defense and Education Fund

Liberty Counsel

National Center for Lesbian Rights

Service Members Legal Defense Network

Transgender Law & Policy Institute

As soon as possible, choose a case and begin reading everything you can find about that case. What organizations participated? In what capacity? Why? What were the groups' leaders trying to achieve? Did it work? What were the legal arguments on each side? What was the broader political context in which the litigation took place? Were the judges who heard the case united or divided? If divided, on what grounds? What was their decision? What impact did it have?

The written portion of this project will consist of five components:

• Research proposal (1 page; 5% of your grade): Identify your case and provide some basic factual details. When and where did it occur? Who were the key participants (e.g., the plaintiffs, defendants, lawyers, and judges)? What was the legal conflict? If you already have a sense of the case's broader political significance, briefly indicate that as well. Due in class on February 1.
• Revised research proposal (2 pages, 5%): Revise and expand your original proposal in response to my feedback. This is the last stage at which you may change topics. If you have not done so already, try to find out whether the case received any press coverage and/or scholarly attention. In this regard, two databases available through the SU Library may be helpful: Lexis/Nexis and LGBT Life. Due in class on February 15.
• Legal analysis (5 pages, 15%): Summarize and evaluate the main legal arguments advanced by plaintiffs, defendants, the court majority, and (where applicable) any concurring or dissenting opinions on the court. Provide direct quotations of the most important passages. Due in class on March 1.
• Political analysis (5 pages, 20%): Assess the broader political context of the decision. While the litigation was proceeding, what relevant political developments occurred at the local, state, or national levels? Were there prominent political actors who expressed support for or opposition to the suit? Did any elections take place while the suit was proceeding? If so, did the legal conflict become a campaign issue? Were some candidates helped or hurt by their support or opposition to the suit? Due in class on March 29.
• Completed research paper (15-20 pages, 40%): Building on your earlier work, advance a clear and persuasive argument about your case. This argument could take a variety of forms. Consider the following examples: (a) The Lambda Legal Defense Fund's successful litigation in Smith v. Jones illustrates the powerful force of rights-based legal arguments as a strategy for social change. (b) Despite their courtroom victories in cases like Smith v. Jones, the Lambda LDF's litigation efforts have had little practical effect on the actual needs of LGBT people. (c) The judges who heard Smith v. Jones almost uniformly abandoned the law to promote their own anti-gay (or pro-gay) preferences. (d) Despite sharp partisan disagreement on the issue in the political arena, the judges who participated in Smith v. Jones were largely united in enforcing the legal principle of equal treatment. (e) Smith v. Jones makes clear that the courts continue to serve as a powerful bulwark of minority rights in the contemporary U.S. (f) Smith v. Jones makes clear that American courts have generally been powerless to impose any effective limits on the public will. You get the idea. Due in my mailbox in 100 Eggers by 4:00 on May 3. 

Note that all written work should be typed and double-spaced. Click here for some more detailed paper expectations.

In addition to the written work, I will ask each of you to provide at least one in-class presentation on your project as it develops. My evaluation of these presentations, along with other aspects of your participation in class, will determine 15% of your grade. Note that I do not expect you to come to class every day with a fully developed point of view about each and every issue addressed in the reading, but I do expect you to be prepared and engaged most of the time.

At the end of the semester, I will ask each of you to submit a one-page self-assessment of your class participation. In this self-assessment, you should assign yourself a letter grade (A, B+, etc.) for participation, and then write a paragraph or two explaining and justifying that grade. For example, you might address the following sort of questions: How clear were your oral presentations? How interesting were they? How well did you respond to questions from your fellow students? How often did you ask questions during their presentations? How many times were you absent from class? How much did you contribute to class discussions? When you didn't participate, were you nonetheless alert and prepared for class? If so, then why didn't you speak up on those occasions? How often did you do anything that disrupted class discussions or distracted your fellow students (e.g., chatting, sleeping, cell phone ringing, leaving the room during class, etc.)? I will read your self-assessment, compare it with my own perceptions, and then assign you a participation grade.

Course Policies

Academic support services: SU provides a variety of tutoring and academic support services, and I encourage you to avail yourself of these resources. Doing so may help you learn the course material better, determine the best strategies for studying that material, improve your writing skills, and have less stress about your success in the course. Tutoring centers include the Tutoring & Study Center (TSC), the Writing Center, the Math and Calculus Clinics, the Physics Clinic, the Chemistry Clinic, and the Athletics Academic Services Center. All schedules and locations are posted on the TSC website.

Academic integrity: University-wide policy provides that "academic integrity is expected of every community member in all endeavors. Academic integrity includes a commitment to the values of honesty, trustworthiness, fairness, and respect," a commitment which "is violated by any dishonest act which is committed in an academic context." Examples of such violations include copying from another student's work, unauthorized cooperation in completing assignments or examinations, and submitting the same written work in more than one course without prior written approval from both instructors. In my experience, the most common form of academic misconduct is plagiarism, which SU policy defines as "the use of someone else's language, ideas, information, or original material without acknowledging the source." If you are caught violating any of these rules, I will assign an F for the course and then refer the matter to the CAS academic integrity coordinator for additional action. For further details on the policy, consult the SU Office of Academic Integrity and the CAS Resource Guide for Promoting Academic Honesty.)

Student academic work: Any work that you produce as part of your participation in this course may be used for educational purposes in future courses. For example, if you write a very good paper, I may distribute it in future classes as a model. If and when I do so, I will always remove your name so that the work is rendered anonymous. 

Reasonable accommodation: If you have any disability that may prevent you from fully demonstrating your abilities in this course, you should contact me as soon as possible to discuss accommodations necessary to ensure your full participation and to facilitate your educational opportunities.

Religious holidays: In accordance with SU policy, I will excuse any absences that result from religious observances, provided that you notify me in advance of the planned absence.

Office hours and email communication: My regular office hours are listed above, but you are welcome to make an appointment for some other time, or simply to drop by. If you just have a quick question, I encourage you to reach me by email. I have also set up a listserv for the course, to which all students should subscribe themselves as soon as possible. To do so, send an email to listserv@listserv.syr.edu which says, in the body of the message, "subscribe sexuality_law [your name]". Once subscribed, you can post a message to the list by sending it to sexuality_law@listserv.syr.edu. Contributions to the listserv will be counted toward the class participation portion of your grade.

Course Schedule

Week one (Jan. 16, 18): Introduction

• Andersen, ch. 1
• E&H, pp. 57-66, 464-467

Cases for discussion: Bowers v. Hardwick (1986), Shahar v. Bowers (1998).

Weeks two and three (Jan. 23, 25, 30, Feb. 1): Privacy, sexuality, and the state

Note: Research proposals are due on February 1.

• E&H, pp. 1-39, skim 40-51, 52-74
• Andersen, ch. 2-4

Cases for discussion: Poe v. Ullman (1961), Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), People v. Onofre (1980), Bowers v. Hardwick (1986), Kentucky v. Wasson (1992), Powell v. State (1998).

Week four (Feb. 6, 8): Equality and sexuality

• E&H, pp. 75-125

Cases for discussion: Loving v. Virginia (1967), Frontiero v. Richardson (1973), Craig v. Boren (1976), U.S. v. Virginia (1996), Watkins v. U.S. Army (1988).

Recommended: Evan Gerstmann, The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection.

Week five (Feb. 13, 15): The law and politics of anti-gay initiatives

Note: Revised research proposals are due on February 15.

In addition to the readings, we'll watch Ballot Measure 9 in class.

• Andersen, ch. 6
• E&H, pp. 125-137

Case for discussion: Romer v. Evans (1996).

Recommended: Lisa Keen and Suzanne Goldberg, Strangers to the Law: Gay People on Trial.

Weeks six and seven (Feb. 20, 22, 27, Mar. 1): The military and other workplaces

Note: Legal analysis papers are due on March 1.

In addition to the readings, we'll watch Coming Out Under Fire in class.

• By Feb. 22: E&H, pp. 363-425 (and re-read Watkins v. U.S. Army from ch. 3)
• By Feb. 27: E&H, pp. 427-452, 274-281, 471-492
• By Mar. 1: Handout with Richards v. USTA (1977), Rosa v. Park West Bank & Trust Co. (2000), Oiler v. Winn-Dixie (2002), Schwenk v. Hartford (2000), Julienne Goins v. West Group (2001)

Cases for discussion: Rostker v. Goldberg (1981), Watkins v. U.S. Army (1988), Steffan v. Perry (1994), Thomasson v. Perry (1996), California Federal Savings and Loan Assoc. v. Guerra (1987), Chambers v. Omaha Girls Club (1988), Smith v. City of Salem (2004), Price Waterhouse v. Hopkins (1989), Lane v. Collins & Aikman Floorcoverings (2001), Ross v. Denver Department of Health (1994), Tanner v. Oregon Health Sciences (1998), Burns v. McGregor (1992), Rene v. MGM Grand (2002), plus all the cases in the handout.

Presentations, Feb. 22: Sarah, Thomasson v. Perry.

Presentations, Mar. 1: Jessica, Ulane v. Eastern Airlines.

Recommended readings on gays in the military: Janet Halley, Don't: A Reader's Guide to the Military's Anti-Gay Policy; Marc Wolinsky and Kenneth Sherrill, eds., Gays and the Military: Joseph Steffan versus the United States; Don't Ask, Don't Tell, Don't Pursue Database, a project of the Robert Crown Law Library at Stanford Law School.

Recommended readings on transgender rights: Paisley Currah, Richard Juang, and Shannon Price Minter, eds., Transgender Rights.

Week eight (Mar. 6, 8): The right to discriminate

In addition to the readings, we'll watch Scout's Honor in class.

• E&H, pp. 312-337

Cases for discussion: Gay Rights Coalition v. Georgetown University (1987); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995); Boy Scouts v. Dale (2000).

Presentations, Mar. 6: Courtny and Darren, Boy Scouts v. Dale.

March 13, 15: Spring break; no class.

Week nine (Mar. 20, 22): The Supreme Court and Lawrence v. Texas (2003)

• E&H, pp. 149-206
• Andersen, ch. 5

Cases for discussion: Lawrence v. Texas (2003); Lofton v. Department of Children and Social Services (2004); Kansas v. Limon (2005); Marcum v. McWhorter (2002).

Presentations, Mar. 20: Ted, Rachel, and Justin, Lawrence v. Texas.

Presentations, Mar. 22: Bianca, U.S. v. Marcum.

Weeks ten, eleven, twelve, thirteen: Marriage and family

Recommended: Martin Dupuis, Same-Sex Marriage, Legal Mobilization, and the Politics of Rights; William Eskridge, The Case for Same-Sex Marriage; Michael Klarman, "Brown and Lawrence (and Goodridge)" (Michigan Law Review, 2005); Andrew Koppelman, Same Sex, Different States; Dan Pinello, America's Struggle for Same-Sex Marriage; R. Claire Snyder, Gay Marriage and Democracy; Evan Wolfson, Why Marriage Matters.

March 27: Why marriage?

• E&H, 547-554
• Andersen, ch. 7
• John D'Emilio, "The Marriage Fight is Setting Us Back" (handout)
• E&H, pp. 518-528, 138-148, 528-531

Presentation: Savannah, Baehr v. Lewin

March 29: Why civil unions?

Note: Political analysis papers are due today.

• Baker v. State of Vermont (1999)
• Beth Robinson's "The Road to Inclusion for Same-Sex Couples: Lessons from Vermont"

Presentation: Greg, Baker v. Vermont

April 3: Goodridge and its aftermath

• E&H, 531-542
• Andersen, Afterword
• Hernandez v. Robles (NY Court of Appeals, 2006)

Presentations: Joseph, Citizens for EP v. Bruning; Brian, Hernandez v. Robles.

April 5: New Jersey

• Lewis v. Harris (NJ Supreme Court, 2006)

Presentations: Meredith and Allison, Lewis v. Harris.

April 10: Connecticut, California, and the future of marriage

• Readings to be announced

Presentation: Sunni, Kerrigan & Mock v. Connecticut; Edvin, Koebke v. Bernard Heights.

April 12: Parental rights I: Do Vermont civil unions have any effect in Virginia?

• E&H, 542-547, 554-556
• Miller-Jenkins v. Miller-Jenkins (2006)

Presentations: Dan, Bottoms v. Bottoms; Theresa, Miller-Jenkins v. Miller-Jenkins.

April 17: Parental rights II: Can gays and lesbians still be denied custody of their biological children?

• E&H, 557-564

Presentations: JT, Weigand v. Houghton; Margarita, Eldridge v. Eldridge.

April 19: Parental rights III: Can gays and lesbians be prohibited from adopting or becoming foster parents?

• E&H, 177-187, 564-576, 511-518

Presentations: Lauren, Howard v. Arkansas; Sheena, Gallucio v. New Jersey; Laura, Lofton v. Dept. of Children and Social Services.

April 24: Mayfest; no class.

Weeks fourteen and fifteen: Final thoughts

April 26

• Readings to be announced

Presentations: Keenan, Griswold v. Connecticut; Kevyn, Bowers v. Hardwick; Amy, Romer v. Evans; Rachel, Lawrence v. Texas.

May 1

• Andersen, ch. 8

Presentations: Megan, Bragdon v. Abbott; Yadira, Hernandez-Montiel v. INS; Lee, Sommers v. Budget Marketing; Jolynn, Planned Parenthood v. Rounds.

May 3: Final papers and participation self-assessments are both due in my mailbox in 100 Eggers by 4:00 p.m.