Cases such as Lawrence v. Texas and Obergefell v. Hodges are the result of LGBTQ advocacy that has grown and developed at a stunning rate since its inception just over a century ago. As recently as the nineteenth century, our culture had no conception of sexual orientation as a facet of one’s identity. Now, sexual orientation serves as the core of a movement that uses it as a tool for advocacy. The prevailing approach has been to emphasize commonality with straight people, by associating LGBTQ people with values like monogamy, romance, respectability, and more. This strategy has led to a succession of LGBTQ legal victories in the last two decades. Unfortunately, those victories have sometimes reflected a narrow idea of what it means to be LGBTQ, premised on the values pushed by assimilationist advocates. This Note argues that the reliance on these values to justify extending rights to LGBTQ people runs the risk of making it more difficult to extend protection in areas where these values are absent.
Note
Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual Punishment
In its seminal case Robinson v. California, the Supreme Court struck down a state statute criminalizing narcotics addiction. The Court held this statute, in criminalizing the disease of drug addiction, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Six years later in Powell v. Texas, the Court declined to extend this holding to encompass alcoholism, because alcoholism involves the act of drinking rather than the status of addiction. However, the Court’s modern Eighth Amendment jurisprudence has signaled a shift in its understanding of cruel and unusual punishment. The Court has begun to take into account brain development, and its relationship to culpability, for certain classes of offenders. Neurological findings regarding the brain development involved in chronic alcoholism necessitate a similar shift in the Court’s framework for analyzing the penalization of chronic alcoholism and, given the Court’s changing stance, call into question the constitutionality of Virginia’s habitual drunkard statute. Rather than viewing alcoholism under the act-versus-status dichotomy, the Court’s Eighth Amendment proportionality analysis signals a shift towards understanding addictions such as chronic alcoholism under a non-binary framework that takes into account recent scientific understandings of addiction. Much like the Court’s shift in the juvenile and intellectual disability contexts, a similar shift should occur, this Note posits, in the Court’s proportionality analysis as applied to statutes involving chronic alcoholism. This Note concludes by calling into question the continued constitutionality of Virginia’s habitual drunkard statute under the Court’s changing jurisprudence.
Mining for Meaning: An Examination of the Legality of Property Rights in Space Resources
In November 2015, the Space Resource Exploration and Utilization Act of 2015 (“SREU Act”) became law. Private space companies hoping to mine asteroids for commercial gain rejoiced. For years, such private companies had struggled to obtain adequate funding and support for their revolutionary space missions due to a lack of legal certainty regarding property rights in space under the vague legal framework of the Outer Space Treaty (“OST”). The SREU Act purportedly eliminated this uncertainty by explicitly granting U.S. citizens property rights in any asteroid or space resource recovered for commercial purposes from space.
Nevertheless, much tension remains between this unilateral grant of property rights and the international obligations of the United States under the OST. This Note concludes that the SREU Act abrogates the United States’ international obligations and that the United States should have initiated discussions at the international level first to champion a more effective and long-lasting multilateral solution. Finally, this Note finds this abrogation to be all for naught, as the law itself fails to achieve its goal of providing the private space industry with the legal certainty it so desires and requires.