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.

Part II of this Article discusses Windsor. Part III examines that decision’s possible implications for section 2 of DOMA, including some possible constructions of the provision and some of the differing constitutional implications of these alternate constructions. Part IV analyzes Windsor’s possible implications for state same-sex marriage bans. The Article concludes that while Windsor could have been clearer with respect to its implications for section 2 and for some of the state same-sex marriage bans, the most plausible interpretation of Windsor establishes the constitutional invalidity of DOMA’s section 2 and of many state mini-DOMAs, in part if not in whole.

Article: Strasser, Windsor, Federalism and the Future of Marriage Litigation

Citation: Mark Strasser, Windsor, Federalism and the Future of Marriage Litigation, 37 Harv. J. L. & Gender Online 1 (2013).

* Trustees Professor of Law, Capital University Law School, Columbus, Ohio.

[1] 133 S. Ct. 2675 (2013).



[2] 1 U.S.C. § 7 (1996).



[3] 28 U.S.C. § 1738C (1996).



[4] Justice Kennedy merely mentioned it in his opinion. See Windsor, 133 S. Ct. 2675, 2682–83 (2013) (“Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.”).




Book Review: Presumed Incompetent: The Intersections of Race and Class for Women in Academia, Gabriella Gutiérrez y Muhs, et al., eds.

Wendy B. Scott[1]

Presumed Incompetent: The Intersections of Race and Class for Women in Academia. Edited by Gabriella Guitierrez y Muhs, Yolanda Flores Nieman, Carmen G. Gonzalez and Angela P. Harris. Boulder, CO. University of Colorado Press (2012). 570 pages.

“Presumed incompetent” names a standard imposed on people of color collectively in America. The book so titled demonstrates how this standard operates in the lives of women of color in the academy. The centuries of oppression, brutality, denial, discrimination, and self-effacement combined to establish this presumption based on entrenched images of those with darker skin as inept, [2] unable and therefore unworthy of the respect[3] accorded to those with lighter skin.[4]  Presumed Incompetent chronicles the struggles in which women of color in the academy have engaged, burdened with the presumption, in order to move forward in a world of privilege.  This essay collection is more than a series of anecdotes. The narratives and research establish empirically that being presumed incompetent, before any performance, is not the result of “individual flaws,” but of “larger structural and cultural forces within academia that make the experience . . . far too common” among women of color.[5] Therefore, Presumed Incompetent is required reading for every university president, chancellor, dean, dissertation, and tenure committee that truly wants to undo the presumption of incompetence.

Presumed Incompetent collects stories told primarily by women of color in a multitude of disciplines who have bravely spoken out in personal narratives, supported by a wealth of research, on their experienced or witnessed marginalization and downright mistreatment by colleagues, administrators, and students. I call them brave because the experiences chronicled and sentiments expressed are more often the subject of quiet conversations with kindred spirits than the subject of public discourse.[6] In the end, the authors move us closer to dispelling the presumption with both the content and the quality of the writing, editing, and research.

The editors organized the essays around four major themes: negotiation of identity, the link between the individual and the collective, the nature of academic culture, and mechanisms for change. [7] The themes are addressed in the context of second-generation diversity issues of campus climate; faculty/student relations; networks of alliances; social class in academia; tenure; and promotion. This review begins with a summary of the four themes through which the presumption of incompetence is explored, with emphasis on the negotiation of identity and mechanisms for change. Part I also points to lessons learned from waging the perpetual battle to keep the presumption at bay and offers some critiques of the collection. In Part II, I offer a brief reflection on my own experience with the presumption to further affirm the legitimacy of what the readers of Presumed Incompetent will learn when they study this timely text. Part III concludes with observations on the value of these essays to women interested in or new to the academy.

Full Book Review: Scott, Presumed Incompetent Book Review

Citation: Wendy Scott, Book Review: Presumed Incompetent: The Intersections of Race and Class for Women in Academia, 37 Harv. J. L. & Gender Online 1 (2013).

[1] Professor of Law, North Carolina Central University.

[2] No better place is that image embedded than in Hollywood, a shear repository of evidence to document the campaign to paint people of color as less than. Films like Birth of a Nation (1915), Gone with the Wind (1939) and the Tarzan series burned the image of the unintelligent other into the minds of generations of American children and adults. A movie buff, I watched two Bette Davis movies back to back. In each, a dark man played the part of her servant. One was the butler, “Uncle Cato,” in the antebellum film Jezebel (1938) set on a Louisiana Plantation where slaves danced and sang happy songs on her request. The other manservant was an unnamed Asian “Uncle Cato” in The Letter (1940), a film set on a rubber plantation in Singapore. For a thorough examination of the images created in Hollywood of the incompetent “darky,” see DONALD BOGLE, TOMS, COONS, MULATOES, MAMMIES AND BUCKS (4th ed. 2001). In later years the “blaxploitation” and video vixen image competed against the image of the hard working productive Cosby Show Huxtable family image. See KARRINE STEFFANS, CONFESSIONS OF A VIDEO VIXEN (2005); Top 10 Memorable Blackploitation Films, Listverse, (last visited Sep. 2, 2013).

[3] Dred Scott v. Sandford, 60 U.S. 393 (1857) enshrined the unworthiness of African Americans into American law. For an example of the ramifications of such legal doctrine, see Vincene Verdun, If the Shoe Fits Wear It: An Analysis of Reparations to African Americans, 67 Tulane L. Rev. 597 (1992).  Immigration and policies regarding Native Americans were also premised on assumptions of inferiority and incompetence. IAN HANEY LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (10THed. 2006); ROBERT WILLIAMS, LIKE A LOADED WEAPON: THE REHNQUIST COURT, INDIAN RIGHTS AND THE LEGAL HISTORY OF RACISM IN AMERICA (2005).

[4] Being white constitutes the ultimate privilege. See Cheryl Harris, Property as Whiteness,­­­ 107 Harv. L. Rev. 1707 (1993) (chronicling the value of whiteness in contrast to being colored). The hierarchy of complexion, or colorism, and hair differences within communities of color has also contributed to the feeling of unworthiness, especially among women.  The effect of colorism is described in the old song by Big Bill Broonzy: “If you was white you’re all right, if you was brown stick around, but if you’s black get back.” See Big Bill Broozy:Black, Brown and White, Youtube, (last visited Sep. 2, 2013). For general treatment of colorism, see, What is Colorism, Mobilizing Around Colorism, (last visited Sep. 2, 2013); What is Colorism,, (last visited Sep. 2, 2013). For scholarly examinations of the significance of hair and color, see Paulette Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 41 Duke L. J. 397 (1991); Jennifer L. Hochschild, The Skin Color Paradox and the American Racial Order, (last visited Sep. 2, 2013).

[5] Afshan Jafar, Presumed Incompetent, Inside High er Ed, (last visited Aug. 16, 2013) (book review).

[6] Two seminal works that addressed the marginalization of women of color in the academy were published three decades ago. THIS BRIDGE CALLED ME BACK: WRITINGS BY RADICAL WOMEN OF COLOR (Cherrie Mofana & Gloria Anzaldua, ed) (1981); ALL THE WOMEN ARE WHITE, ALL THE MEN ARE BLACK, BUT SOME OF US ARE BRAVE; BLACK WOMEN STUDIES (Gloria T. Hull, Patricia Bell Scott & Barbara Smith) (1982).

[7] The major themes of the book are discussed in the introduction. PRESUMED INCOMPETENT: THE INTERSECTIONS OF RACE AND CLASS FOR WOMEN IN ACADEMIA 1, 1-14 (Gabriella Guitierrez y Muhs, Yolanda Flores Nieman, Carmen G. Gonzalez, Angela P. Harris, eds., 2012) [Hereinafter PRESUMED].


Congressional Power to Effect Sex Equality

Congressional Power to Effect Sex Equality

Patricia A. Seith

This article will be published in our forthcoming Winter 2013 issue.

From its passage by Congress in 1972 to its ratification failure in 1982, the Equal Rights Amendment (“ERA”) pivotally shaped sex equality discourse. While historians and legal scholars have examined and analyzed its demise, its failure has been deemed inconsequential for constitutional doctrine — conventional wisdom submits that a “de facto ERA” was achieved through judicial action. This Article argues that this dominant narrative has obscured the other half of the equation — the role of Congress in implementing the “de facto ERA.” Through original archival and legislative research, this Article offers a new account of congressional action aimed at entrenching the substantive guarantees of the sex equality principle. This Articles introduces the Economic Equity Act to the sex equality narrative.

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By Stevie V. Tran and Elizabeth M. Glazer

Legal protection from discrimination on the basis of gender identity has been reserved for perfect gender-nonconformists.  These are plaintiffs such as Jimmie Smith and Phelicia Barnes, who were able to state actionable claims under Title VII’s prohibition against employment discrimination on the basis of sex because they were perfectly gender-nonconforming men — that is, individuals who behave like women but who are “really” (according to the courts that decided their cases) men.  Relying on the Supreme Court’s decision in Price Waterhouse v. Hopkins — which expanded the scope of Title VII’s prohibition against sex discrimination to cases in which plaintiffs experienced discrimination for failing to conform to stereotypical norms about masculine and feminine behavior — the Barnes and Smith courts offered protection to transgender victims of employment discrimination.  The protection of what this Article calls “perfect” gender-nonconformists such as Smith and Barnes is an important step toward protecting transgender people from discrimination.

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Tempering Idealism with Realism

By C. Quince Hopkins

This Article evaluates the potential use of "responsibility initiatives" in gender-based violence, with a specific focus on adult intimate partner violence.  This Article analyzes the law's role in furthering victims' recovery from the trauma caused by gender-based violence through promoting acceptance of responsibility by offenders.  Perpetrators of abuse often minimize or outright deny their abuse when asked about it by family, friends, and even their victims.  In cases of acquaintance sexual assault, this denial is often firmly rooted in offenders' cognitive distortion, which leads them to believe their victim in fact consented.  The denial of the victim's experience of the assault as clearly unwanted causes unique and devastating trauma to victims, and yet the core of our criminal justice response to sex offenses facilitates this denial rather than acceptance of responsibility by offenders.

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Gendered (In)security

By Pooja Gehi

Over the past decade, both immigrant rights and lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights have been key issues in United States political and legal debates.  Yet, the two issue areas have rarely publicly intersected within these debates.  The "war on terror" has heightened the public debate around immigration, national security, and border control; however, LGBTQ concerns and a discussion of LGBTQ immigrants continue to be rhetorically separate from these immigration-focused conversations.  This rhetorical separation is especially problematic for those living at the intersections of different identities, including LGBTQ immigrants of color who live in poverty.  As this Article will show, the separation ignores the ways in which individuals who do not fit the public description put forth by "rights-based" organizations are the most negatively impacted by the laws and regulations that are being publicly challenged by these mainstream groups.

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Feminist Legal Realism

This Article begins to rethink current conceptions of two of the most significant legal movements in this countryLegal Realism and Feminist Jurisprudence. The story of Legal Realism has been retold for decades. Authors have dedicated countless books, law review articles, and blog posts to the subject. Legal and other scholars repeatedly have attempted to define better the movement and ascertain its adherents. Although the usual suspects—Karl Llewellyn, Roscoe Pound, and Jerome Frank—are almost always a part of the conversation, surprisingly few agree on the totality of Realism’s personage or parameters. The lists of those considered realists—and there are many—are constantly expanding and contracting. The movement’s teachings and implications are ever-evaluated. In all of this alleged evolution, however, one thing has remained constant: male-centered descriptions of Legal Realism have occupied the center of the discussion.


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