Douglas NeJaime

Visiting Professor of Law

Spring 2017

Griswold 407

617-495-5358

Assistant: Steven Trothen / 617-496-6228

Biography

Douglas NeJaime is Visiting Professor of Law at Harvard Law School for Spring 2017. He is Professor of Law at UCLA School of Law and Faculty Director of the Williams Institute. The Williams Institute is an interdisciplinary research center on sexual orientation and gender identity law and public policy. NeJaime teaches in the areas of family law, law and sexuality, legal ethics, and constitutional law. His research explores the relationship between law and mobilization, with a focus on the interaction between family law and constitutional norms.

NeJaime was previously Professor of Law at UC Irvine School of Law, Associate Professor of Law at Loyola Law School in Los Angeles, and the Sears Law Teaching Fellow at the Williams Institute. In Fall 2016, he was Visiting Professor of Law at Yale Law School.

NeJaime is the co-author of Cases and Materials on Sexual Orientation and the Law (with Carlos Ball, Jane Schacter, and William Rubenstein) (5th ed. West 2014; 6th ed. forthcoming 2017). His scholarship includes “Marriage Equality and the New Parenthood,” 129 Harvard Law Review 1185 (2016); “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” 124 Yale Law Journal 2516 (2015), with Reva Siegel; “Before Marriage: The Unexplored History of Nonmarital Recognition and Its Relationship to Marriage,” 102 California Law Review 87 (2014); “Constitutional Change, Courts, and Social Movements,” 113 Michigan Law Review 877 (2013); “Marriage Inequality: Same-Sex Relationships, Religious Exemptions, and the Production of Sexual Orientation Discrimination,” 100 California Law Review 1169 (2012); “Winning Through Losing,” 96 Iowa Law Review 941 (2011); and “Lawyering for Marriage Equality,” 57 UCLA Law Review 1235 (2010), with Scott Cummings.

NeJaime is a two-time recipient of the Dukeminier Award, which recognizes the best sexual orientation legal scholarship published in the previous year. He is a frequent commentator on issues relating to LGBT law, and his comments have been featured in the New York Times, L.A. Times, and NPR News, among other outlets. He is a graduate of Harvard Law School (2003) and Brown University (2000).

Douglas NeJaime, Marriage Equality and the New Parenthood, 129 Harv. L. Rev. 1185 (2016).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
LGBTQ Rights Law
,
Domestic Relations
Type: Article
Abstract
Now that same-sex couples have a nationwide right to marry, a new generation of questions about the legal regulation of the family is emerging. While integral to the future of same-sex family formation, these questions also implicate the family-law regime more generally. By integrating developments in family law governing different-sex and same-sex couples, biological and nonbiological parents, and marital and nonmarital families, this Article shows how marriage equality was enabled by — and in turn enables — significant shifts in the law’s understanding of parenthood. Using a case study of work in California from the mid-1980s to the mid-2000s, this Article recovers the role of marriage in earlier LGBT parenting litigation on behalf of unmarried parents. It shows how that litigation reshaped norms governing marriage and parenthood. In the late twentieth century, the law increasingly recognized (presumptively heterosexual) parents on grounds independent of marriage and biology. As the law protected the rights of unmarried, biological fathers, it also began to recognize married, nonbiological parents, largely in response to families formed through assisted reproductive technologies (ART) and to stepparent families. LGBT advocates leveraged both developments to elaborate a new model of parenthood capable of recognizing their constituents’ nonmarital, nonbiological parent-child relationships. Eschewing formal parentage markers, including biology, gender, and marital status, advocates instead built parentage around intentional and functional relationships. This new model of parenthood is embedded in marriage equality and is extended in a family-law regime in which same-sex couples can marry. By uncovering these transformative aspects of marriage equality, this Article challenges the historical, normative, and predictive dimensions of prominent critiques of same-sex marriage as conservative and assimilationist. More broadly, it reveals how marriage equality can facilitate the expansion of intentional and functional parenthood for all families, and thereby can continue to reduce distinctions between same-sex and different-sex couples, biological and non-biological parents, and perhaps even marital and nonmarital families.
Douglas NeJaime & Reva Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516 (2015).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Religion
,
Gender & Sexuality
,
Religious Rights
,
Politics & Political Theory
Type: Article
Abstract
Persons of faith are now seeking religious exemptions from laws concerning sex, reproduction, and marriage on the ground that the law makes the objector complicit in the assertedly sinful conduct of others. We term claims of this kind, which were at issue in Burwell v. Hobby Lobby Stores, complicity-based conscience claims. Complicity-based conscience claims differ in form and in social logic from the claims featured in the free exercise cases which the Religious Freedom Restoration Act (RFRA) invokes, as well as the claim to religious exemption the Court recently recognized in Holt v. Hobbs. The distinctive features of complicity-based conscience claims matter, not because they make the claim for religious exemption any less authentic or sincere, but rather because accommodating claims of this kind has the potential to inflict material and dignitary harms on other citizens. Complicity claims focus on the conduct of others outside the faith community. Their accommodation therefore has potential to harm those the claimants view as sinning. Today complicity claims are asserted by growing numbers of Americans about contentious “culture war” issues. This dynamic amplifies the material and dignitary effects of accommodation. Faith claims that concern questions in democratic contest will escalate in number, and accommodation of the claims will be fraught with significance, not only for the claimants, but also for those whose conduct the claimants condemn. Some, tacitly acknowledging the democratic contests in which complicity claims are entangled, urge religious accommodation in the hopes of peaceful settlement. Yet, as we show, complicity-based conscience claims can provide an avenue to extend, rather than settle, conflict about social norms. We highlight the distinctive form and social logic of complicity-based conscience claims so that those debating accommodation do so with the impact on third parties fully in view. The Article considers a range of legal and institutional contexts in which complicity claims are arising, paying particular attention to RFRA. We show how concern about the third-party impact of accommodation structured the Court’s decision in Hobby Lobby. And looking beyond Hobby Lobby, we show how this concern with third-party harm is an integral part of the compelling interest and narrow tailoring inquiries that courts undertake in applying the statute. At issue is not only whether but how complicity claims are accommodated.
Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and its Impact on Marriage, 102 Calif. L. Rev. 87 (2014).
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Domestic Relations
Type: Article
Abstract
In the wake of the celebration of the U.S. Supreme Court’s decision in United States v. Windsor, it seems obvious that the LGBT movement is intent on securing marriage. But the relationship between LGBT advocacy and marriage was not always so clear. In fact, before the movement began to make explicit claims to marriage in the 1990s, leading advocates engaged in a vigorous debate about whether to pursue marriage. This debate went beyond mere strategic disagreement and instead focused on ideological differences regarding the role of marriage and its relationship to LGBT rights, family diversity, and sexual expression. Those opposing the turn to marriage urged the movement to continue pursuing nonmarital rights and recognition, including domestic partnership, as a way to decenter marriage for everyone. Critics of today’s marriage equality advocacy point to this history as a lost alternative past worthy of reclamation. Today’s marriage-centered movement, they argue, channels relationships into traditional forms and marginalizes those who fail to fit the marital mold. Instead of continuing down this road, these critics contend, movement advocates should recover their earlier roots and embrace pluralistic models of family and intimacy outside of marriage. This Article challenges the assumptions that structure today’s debate over the role of marriage in LGBT advocacy. It does so by uncovering the centrality of marriage even during the time when LGBT advocates worked entirely outside of marriage and built nonmarital regimes. Through a case study of domestic partnership advocacy in California in the 1980s and 1990s, this Article shows that the relationship between nonmarital advocacy and marriage was dialogical. Marriage shaped LGBT advocacy for nonmarital recognition, and that advocacy in turn shaped marriage. To gain support for nonmarital rights and benefits, advocates cast same-sex relationships as marriage-like and built domestic partnership in reference to marriage, thus reinscribing — rather than resisting — the centrality of marriage. Yet, at the same time, this nonmarital advocacy contributed to an ascendant model of marriage characterized by adult romantic affiliation, mutual emotional support, and economic interdependence — a model of marriage capable of including same-sex couples. Revisiting this earlier time in LGBT advocacy sheds light on the current marriage-centered moment. By uncovering how marriage anchored advocacy on nonmarital recognition, the case study demonstrates the difficulty in escaping marriage’s regulatory pull and thereby challenges normative and prescriptive claims pushing away from marriage in LGBT advocacy. And by showing how advocates shaped marriage’s meaning in the space outside marriage, it reveals how nonmarital advocacy built the foundation for today’s marriage equality jurisprudence.

Education History

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Griswold 407

617-495-5358

Assistant: Steven Trothen / 617-496-6228