Category Archives: Articles

Witt-less: A History and Analysis of the U.S. Military’s Failure to Comply With The Ninth Circuit’s Due Process Standard for ‘Don’t Ask, Don’t Tell’

Ari Freilich[1]

Please click here for a PDF version of the article.

I. Introduction

In its May 2008 ruling in Witt v. Dep’t of the Air Force,[2] the Ninth Circuit Court of Appeals became the first court in the nation to subject Don’t Ask, Don’t Tell (“DADT”) to a standard of “heightened scrutiny” and, more generally, to explicitly require more than deferential rational basis justification for “government attempts to intrude upon the personal and private lives of homosexuals[.]”[3] But Witt did more than simply articulate an abstract due process standard for subsequent gay rights cases. Surprisingly scant attention has been paid to the fact that, in applying heightened scrutiny to DADT, Witt mandated a new, significant, evidentiary burden shift against the military in discharging servicemembers for their sexual orientation. The Witt Court invalidated DADT’s blanket, mandatory discharge policy in favor of a fact-specific standard requiring actual, individualized proof of military necessity in order to substantiate a servicemember’s discharge under DADT. That decision, and the “Witt Standard” borne of it, should have been a watershed moment for gay rights in America because the Ninth Circuit Court afforded significantly expanded substantive due process protections to gay men and women within its jurisdiction.[4] The decision should also have had an immediate impact on gay servicemembers’ right to serve openly in the U.S. Armed Forces. Although the military’s highest ranking officials acknowledged the Witt Standard as binding and approvingly cited it in federal court cases, the military simply, absolutely, and unconstitutionally ignored the decision in practice. Continue reading Witt-Less: A History And Analysis Of The U.S. Military’s Failure To Comply With The Ninth Circuit’s Due Process Standard For ‘Don’t Ask, Don’t Tell’

The Court Treads Lightly: Why Mandatory Pre-Abortion Ultrasound Laws Demand a More Concrete Legal Analysis by Courts

Rebecca Bucchieri 

George Mason University School of Law, J.D. Candidate, May 2015; American University, B.A. Law and Society, Magna Cum Laude, 2012. I would like to thank my family and friends for their invaluable feedback and loving support. 

Please click here for a PDF version of the article.


The doctor tells Ms. Jones, “Here I see a well-developed diaphragm and here I see four healthy chambers of the heart.”[1] Words that should sound uplifting instead feel like punishment. The doctor continues to describe the size and shape of the fetus as he shows Ms. Jones the image on the ultrasound machine. Ms. Jones is not at a prenatal care appointment. She is at an abortion clinic undergoing a mandatory pre-abortion ultrasound. Ms. Jones is not listening to each of the doctor’s words in joyful anticipation of the next. She is clenching her eyes shut and wishing she could shut off the machine resonating the fetus’s heartbeat. Continue reading The Court Treads Lightly: Why Mandatory Pre-Abortion Ultrasound Laws Demand A More Concrete Legal Analysis By Courts

Windsor, Federalism, and the Future of Marriage Litigation

Mark Strasser*

In United States v. Windsor,[1] the United States Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA).[2] Now that section 3 has been invalidated, section 2 of DOMA may also be challenged.[3] The constitutionality of DOMA section 2 was not before the Windsor Court, so the Court could not have been expected to address its validity directly. Nonetheless, the Windsor opinion provides surprisingly little express guidance with respect to whether section 2 also violates constitutional guarantees.[4] Further complicating any analysis of that section’s validity is that the section has not been authoritatively construed. The constitutionality of section 2 (and even its being subject to challenge) will depend greatly on its authoritative interpretation and, in addition, on a clear articulation of the constraints, if any, on the power of a state to refuse to recognize a marriage validly celebrated in a sister domicile. If section 2 is construed narrowly and is found not to afford states a power that they do not already possess, then it would seem immune from challenge; however, in that event, a key provision of several state mini-DOMAs will lose even the veneer of legality. Continue reading Windsor, Federalism, and the Future of Marriage Litigation


Unsex Mothering: Toward a New Culture of Parenting

I was, until recently, a pregnant man. I explored some of the issues that arose along my path to parenthood in a recent essay titled Pregnant Man?: A Conversation. My husband and I began the process of having a child several years ago when we hired a surrogacy agency that works primarily with gay male couples. After a complex process, we are now raising our daughter.

As a parent, I confront a far more sexed area of life than I have ever encountered before. Everyone congratulates my partner and me on being "fathers," even though within our home we share responsibilities and flip roles, including a mothering role, with some fluidity. The outside world, it seems, needs to box us into the "daddy" category as much as it invests women with the power of motherhood.

Some time ago, I was in a taxi with my daughter, riding to a law school event at Grand Central Terminal. She fussed a bit and the driver said, "Where's the mother. Only the mother knows how to do this." Avoiding a complex explanation that I view myself as both mother and father, I said she has two dads. He still seemed perplexed that a man could know how to care for a child. I left the taxi and wiped a saliva-soaked Cheerio from my daughter's chin, feeling less of a parent because I was perceived as only a father, and not the primary parent — a mother. It is a feeling constantly reinforced for gay male parents I know who report that when in public — at markets, stores, and restaurants — they get asked by women: "Is it mommy's day off?" It is challenging to come up with a responsible response.

Behind the confusion in faces of people like the taxi driver, whom I tell about our family structure, I can see that they are thinking that a child without a mother is akin to an orphan — taken care of, but not supported and nurtured the way only a "mother" can. Again, "[only] the mother knows how to do this." This is why I wanted to be a mother: because it was about learning and knowing how to parent in the most challenging situations. In reality, to the extent that traditional definitions of "mother" and "father" mean anything, many of us flip and shift among those roles. I have begun to wonder whether society would benefit from unsex mothering (and fathering) to foster unsexed parenting. This Article explores what that would mean and why it is desirable.

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