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FEATURE CONTENTS INTRODUCTION 1068 I. SEX EQUALITY, REAL DIFFERENCES, AND ANTI-STEREOTYPINC 1084 A. Real Differences 1084 1. Biology Is Neutral, or Biology Is Not Bigotry 1095 2. The Two Sexes [...], This Feature uses recent developments in LGBTQ-equality law to unsettle sex equality's enduring commitment to biology as a basis for sex discrimination. Sex equality rejects sex discrimination when it is based on sex stereotypes, defined as gross generalizations about women and men, but not when it is based on biological differences between the sexes, like pregnancy, anatomy, and strength. Biological justifications for race discrimination--once commonhave been relegated to the trash heap of history. But biological justifications for sex discrimination persist. This is so because sex equality insists that biology alone is neither a stereotype nor an expression of bigotry. Biological rationales for sex discrimination remain attractive to lower federal and state courts, and have received the Supreme Court's blessing, most recently in Dobbs v. Jackson Women's Health Organization. The result is a broad swath of laws across substantive areas--including family law, tort, immigration law, criminal law, property, and abortion law--that sustain sex inequality courtesy of biology and despite a fairly robust anti-stereotyping principle. This Feature argues that sex equality's continued embrace of real differences should not survive what LGBTQ equality shows: that biologically rationalized sex discrimination is an illegal sex stereotype. It uses recent developments in LGBTQ equality surrounding sex, the body, procreation, and parenthood to unsettle sex equality's beliefs in the reality of biological differences between the sexes and in the legality of laws based on those differences. It urges sex equality to grapple with what LGBTQ equality has to say about biology and its role in lawmaking and imagines what the American law of sex might look like when it does. Biologically rationalized sex distinctions have always been sex stereotypes. It is just that now, LGBTQ equality makes those stereotypes easier to see, harder to ignore, and impossible to justify.

IV. RESULTS A. Initial Results The first model specification uses the question of agreement as the dependent variable: Overall, I agree with the Supreme Court's decision in this case. (173) [...]

FROM DISGUST TO HUMANITY: SEXUAL ORIENTATION & CONSTITUTIONAL LAW. By Martha C. Nussbaum. Oxford and New York: Oxford University Press. 2010. Pp. xxiv, 217. $21.95. INTRODUCTION Martha Nussbaum's latest book, [...]

Constitutional law has long assumed that mothers and fathers are fundamentally different. Maternity, that law posits, is certain, obvious, and monolithic--consolidated in an easily identifiable person who is at once a biological, social, and legal parent. Paternity, in contrast, is construed as uncertain, nonobvious, relative, and often unclear. Over time, constitutional law has grown more insistent about the obviousness of motherhood. It also has cemented its idea of maternity into a fundamental principle of sex equality law that applies in settings--like transgender rights--that have nothing to do with certain mothers and uncertain fathers. Constitutional law's logic of maternal certainty and paternal uncertainty invites criticism for many reasons. It channels the notion that pregnant women are presumptive mothers. It perpetuates questionable stereotypes about mothers and fathers. It determines who can be a parent and how he, she, or they ought to parent. It is in serious tension with constitutional law's disestablishment idea. For all of these reasons, constitutional maternity warrants reform, and one promising pathway of reform is family law's less regressive and more multidimensional vision of motherhood. Never as uncomplicated as the Supreme Court has assumed, maternity has become considerably more complex in light of the new forms of kinship enabled by alternative reproduction and its legal accommodation. During the exact time that the Supreme Court has insisted that women and men are inherently different because of maternal certainty and paternal uncertainty, state family law has painted a more complicated picture. Maternity, that picture suggests, often is uncertain and nonobvious. It often is relative. Like paternity, it often is a matter of opinion--judicial opinion. Most remarkably, state family law has shown that maternity is all of these things by relying on the same body of federal constitutional doctrine that insists that mothers and fathers are fundamentally different--and fundamentally different because mothers, unlike fathers, are basic, singular, and monolithic. This Article argues that progressive advances surrounding the new maternity ought to unsettle regressive tendencies surrounding constitutional maternity. These regressive tendencies touch and burden many: from unmarried fathers and transgender individuals to nonbiological and biological mothers. This Article imagines what the new maternity emerging from family law would mean for constitutional law. The idea that the new maternity could unsettle constitutional maternity is not necessarily radical--that project has been unfolding in state courts for years. The consolidation of the new maternity in constitutional law, however, could have meaningful consequences both within and beyond the law of parenthood, destabilizing everything from parentage regimes that rest on the notion of essential biological difference to the argument that transgender discrimination is not illegal because "sex" is not "a stereotype." [ABSTRACT FROM AUTHOR]

Now that national marriage equality for same-sex couples has become the law of the land, commentators are turning their attention from the relationships into which some gays and lesbians enter to the mechanisms on which they -- and many others -- rely in order to reproduce. Even as one culture war makes way for another, however, there is something that binds them: a desire to establish the family. This Article focuses on a problematic manifestation of that desire: the incest prevention justification. The incest prevention justification posits that the law ought to regulate alternative reproduction in order to minimize the potential for accidental incest between individuals involved in the donor conception process. A leading argument offered by both conservatives and progressives in defense of greater regulation of alternative reproduction, the incest prevention justification hearkens back in troubling ways to a taboo long used in American law to discipline the family. That justification is problematic not just in theory, but also in fact: it could catalyze regulation that radically reforms the fertility industry, producing adverse effects on the only way in which thousands of persons each year are able to have children and become parents. This Article uses the incest prevention justification as an opportunity to consider the scope of a marriage equality precedent -- specifically, how, and to what extent, such a precedent will affect the law of alternative reproduction, a largely unregulated field. Even before the Supreme Court ruled in favor of marriage equality in June 2015, scholars were considering the impact that a marriage equality precedent could have in domains outside of marriage. This Article furthers that inquiry by considering marriage equality's potential impact on the regulation of procreation. Its narrow objective is to argue that reproductive regulation that flows from incest anxiety is both normatively undesirable and constitutionally deficient; the logic that fueled marriage discrimination for decades -- the logic of the incest taboo -- ought not, and likely cannot as a constitutional matter, be grafted onto the law of alternative reproduction. Its broader objective is to show that while marriage inequality might be a thing of the past, at least for same-sex couples, its animating logic persists in the way that we think about sexuality, parenthood, and the family. [ABSTRACT FROM AUTHOR]

The article discusses U.S. reproduction and family law, with a particular focus on U.S. Constitution's norms regarding reproductive laws related to children conceived through sexual intercourse. U.S. reproduction law concerning testing for sexually transmitted diseases in sperm donors, including testing for the HIV virus, is discussed.

This Article offers a new theory of how the law attempts to control intimate and family life and uses that theory to argue why certain laws might be unconstitutional. Specifically, it contends that by regulating non-traditional relationships and practices that receive little or no constitutional protection-- same-sex relationships, domestic partnerships, de facto parenthood, and non- sexual procreation--the law is able to express its normative ideals about all marriage, parenthood, and procreation. By regulating non-traditional kinship, then, the law can be aspirational in a way that the Constitution would ordinarily prohibit and can attempt to channel all of us in ways that satisfy its normative ideals. This Article refers to this form of channeling or control as "back door" regulation, and maintains that by regulating at the margins, the law attempts to regulate everyone. In addition to offering a new theory of the family and its legal regulation, this Article uses that theory to enrich constitutional challenges to laws, like exclusionary marriage regimes, that selectively burden non-traditional intimacy and practices. Most broadly, it invites readers to consider how far the law reaches when it regulates as well as just how interconnected to one another the law's regulation (and discrimination) makes us. [ABSTRACT FROM AUTHOR]

The article focuses on the imitative structure of a particular rhetorical strategy on which those who support same-sex marriage have relied when making arguments for why same-sex marriage prohibitions are unconstitutional. It sets forth the comparative argument as it has appeared in a variety of legal sources, including academic commentary, litigation briefs and judicial opinions and highlights the substantive and structural similarities that the argument shares with the slippery slope. It then offers three different explanations for why marriage progressives have increasingly turned to this particular argument. It considers the potentially beneficial effects of rhetorical mimicry or appropriation more generally.