2011 Conference Program (PDF) - Syracuse University College of Law

4.6 The Frontiers of Sexual Orientation Law
political and social reactions to the Civil Rights era. The Article develops this proposition
by explaining how this cultural reaction played out legally in the criminal justice
system—how political and public wrath expressed itself through the mechanics of
ritual—the way lynching did for a previous age.
Heron Greenesmith
Drawing Bisexuality Back into the Picture: How Bisexuality Fits into LGBT Legal
Strategy 10 Years After Bisexual Erasure
Written on the tenth anniversary of Kenji Yoshino's seminal piece, Heron Greenesmith's
article begins from the position that bisexuality is invisible in legal culture and poses two
hypotheses for this invisibility. First, while Yoshino's analysis retains viability when
analogized to the legal context, Greenesmith proposes that bisexuality is inherently
invisible to the law, beyond the reach of deliberate erasure. That is, where sexuality is at
issue, plaintiffs are presumed monosexual, and must either declare their own bisexuality
or have it found for them. Second, Greenesmith argues that where bisexuality is legally
relevant it has been erased within the legal culture because it is complicated—because it
muddles legal arguments that depend upon the binary of sexuality. Greenesmith uses the
suspect class analysis to show how bisexuality complicates legal arguments, and proposes
two solutions through which bisexually can be introduced into the Equal Protection
analysis without compromising sexual orientation's suspect classification.
Ann Tweedy
Polyamory as a Sexual Orientation
This article examines, from a theoretical standpoint, the possibility of expanding the
definition of sexual orientation in employment discrimination statutes to include other
disfavored sexual preferences, specifically polyamory. It first looks at the fact that the
current definition of sexual orientation is very narrow, being limited to orientations based
on the sex of those to whom one is attracted, and explores some of the conceptual and
functional problems with the current definition. Next the possibility of adding polyamory
to current statutory definitions of sexual orientation is considered, including examinations
of whether polyamory is a sufficiently embedded identity to be considered a sexual
orientation and the degree of discrimination that polyamorists face. After concluding that
expanding current statutory definitions of sexual orientation to include polyamory would
be reasonable, the article looks at some of the complications to making such a move.
Michael Boucai
An Argument from Bisexuality for Same-Sex Marriage
Imagining an argument for same-sex marriage from the distinct perspective of a bisexual
plaintiff, Boucai's paper will offer several friendly amendments to Kenji Yoshino's
characterization of pro-gay and anti-gay interests in stabilizing sexual orientation.
Elizabeth M. Glazer
Sexual Reorientation
Bisexuals have been invisible for at least ten years. Ten years ago, Kenji Yoshino wrote
about the “epistemic contract of bisexual erasure,” the tacit agreement between both
homosexuals and heterosexuals to erase bisexuals. Though legal scholarship has
addressed bisexuality only in rare moments, Yoshino’s epistemic contract of erasure
answered Ruth Colker’s earlier call for a “bi jurisprudence” and explained why the “vast
and vastly unacknowledged wall between heterosexual and homosexual identities” that
Naomi Mezey identified has been so “vigilantly maintained.” While the tenth anniversary
of the publication of Yoshino’s article is reason enough to revisit the topic of bisexual
erasure, this Article revisits the topic in light of the recent storm of same-sex marriage
litigation.
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