TMSL Journal 2014 PDF

Thurgood Marshall School of Law
Journal on
Gender, Race & Justice
Volume IV 2014 Issue I

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Copyright 2014 TMSL Gender, Race, and Justice Law Journal
Cite As: 4 T. Marshall L.J. Gender, Race & Just. 1.

Thurgood Marshall School of Law Faculty

Dannye R. Holley; B.A., J.D., L.L.M.
Dean & Professor of Law
Gabriel Aitsebaomo; C.P.A., B.B.A., J.D., L.L.M.
Professor of Law and Associate Dean for Academic Affairs
Ahunanya U. Anga; B.S., J.D.
Associate Professor of Law
James W. Beard, Jr.; B.S., J.D., L.L.M.
Marguerite Butler; MLIS, B.A., J.D.
McKen V. Carrington; B.S., J.D.
Professor of Law
Martina E. Cartwright; A.A., B.A., J.D.
Assistant Professor of Law - Clinic
Walter T. Champion; B.A., M.A., Ph.D., MSLS, J.D.
George Foreman Professor of Law
Okezie Chukwumerije; D. Jur., L.L.M., L.L.B.
Professor of Law
Fernando Colon-Navarro; B.A., J.D., Ed.M., L.L.M.
Professor of Law and Director of L.L.M. & Immigration Development
James M. Douglas, B.A., J.D., J.S.M.
Professor of Law
Emeka Duruigbo; L.L.B., L.L.M., S.J.D.
Fellow; Professor of Law
Constance F. Fain; B.S., J.D., L.L.M.
Earl Carl Professor of Law
Sally Terry Green; B.A., J.D.
Thelma Harmon; B.B.A., J.D.
Maurice Hew, Jr.; B.S. J.D.
Associate Professor of Law and Director of Clinical Education
Cassandra L. Hill; B.A., J.D.
Associate Professor of Law and Director of Legal Writing
Craig L. Jackson; B.A., J.D.
Professor of Law
Faith Joseph Jackson; B.A., J.D.
Associate Professor of Law and Associate Dean for External Affairs
Anna T. James; B.A., J.D., M.L.S.
Michael C. James; B.S., J.D., L.L.M.
Assistant Professor of Law

Thurgood Marshall School of Law Faculty

Lydia D. Johnson; B.A., J.D.
Marcia Johnson; B.S., J.D.
Professor of Law
E. Ericka Kelsaw; B.B. A., J.D.
Thomas E. Kleven; B.A., L.L.B.
Professor of Law
Manuel D. Leal;B.S., J.D., L.L.M.
Professor of Law
Stephanie M. Ledesma; B.A., J.D., M.A.
Assistant Professor and Coordinator of Experiential Learning Programs
Martin L. Levy; B.A., J.D.
Professor of Law
Shaundra Kellam Lewis; B.A., J.D.
Assistant Professor of Legal Writing
Virgie Lemond Mouton; B.S.,Ed., M.Ed., J.D.
Assistant Dean for Student Development and Academic Support Instructor
Ana Otero; B.A., M.I.A., M.B.A., J.D.
Elsa Y. Ransom; B.S., M.S., J.D.
Deana Pollard Sacks; B.A., J.D., L.L.M.
Roberson King Professor of Law
Lupe Salinas; B.A., J.D.
Eugene Harrington Professor of Law
Kindaka Sanders; B.A., J.D.
SpearIt, B.A., M.T.S., Ph.D., J.D.
DeCarlous Y. Spearman; B.S., J.D. M.L.I.S.
Law Library Director and Assistant Professor of Law
Rebecca K. Stewart; B.A., J.D.
Asmara M. Tekle; A.B., J.D.
Professor of Law and Associate Dean for Research & Faculty Development
Katherine T. Vukadin; B.A., Certificate of Political Science, J.D.
April Walker; B.A., J.D.
L. Darnell Weeden; B.A., J.D.
Professor of Law
Edieth Y. Wu; B.A., J.D., L.L.M.
Professor of Law

Journal on
Gender, Race & Justice

"Injustice anywhere is a threat to justice everywhere."
Martin Luther King, Jr.

EXECUTIVE BOARD

Marsheldondria Bowman TaLisa Jones
Editor in Chief Executive Editor

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Editor-In-Chief Team Circulation/Online Team
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FACULTY ADVISORS

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The Thurgood Marshall School of Law Journal on Gender, Race, & Justice thanks
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Journal on
Gender, Race, & Justice

Table of Contents

ARTICLES

The Male Refugee Paradigm in American Asylum Law and What Can Be
Done to Change it
Claire Arritola .............................................................................................. 1

Quantums of Force: Dispelling PSUEDO Ambiguities of Physical Force
Under the Lautenberg Amendment Through the Application of Canons
of Construction
Luis S. Baez ................................................................................................. 26

Can a Corporation Exercise Religion?
A Solution To The HHS Contraception Mandate Controversy
Chris Blain .................................................................................................. 50

Domestic Violence on the World Stage:
Using International Standards as a Framework for Change in the
United States
Dori Cohen................................................................................................... 80

Floridas Stand Your Ground Law:
The National Rifle Association and Implicit Racial Bias
Kirstin Jarstad.......................................................................................... 110

No Good Deed Goes Unpunished: An Argument For Why Kansas Must
Rewrite Its Artificial Insemination Statute
Houson Lafrance ....................................................................................... 161

The Stripper and the Other Woman: The Effects and Ineffectiveness of
the Single-Purpose Pole Tax
Hayley Panasiuk ....................................................................................... 182

Dead Man Walking: The Rights of the Dead Under 42 U.S.C. 1983 and
the Due Process Clause
Bradley Steffen .......................................................................................... 212

1

THE MALE REFUGEE PARADIGM IN AMERICAN ASYLUM LAW AND
WHAT CAN BE DONE TO CHANGE IT

Claire Arritola

I. Introduction

Women around the world are subjected to distinctive forms of abuse and
persecution such as domestic violence, genital mutilation, honor killings, rape, and
sexual slavery. These female victims are sometimes able to escape their own
countries and seek asylum in the United States. They face so many challenges in
their home countries, yet when they escape, they face another almost
insurmountable challenge - qualifying for asylum in the United States as a woman
facing gender-specific persecution. The law governing gender-based asylum claims
reflects both substantive and procedural biases against refugee women that stem
from male-centered legal standards and a misplaced respect for oppressive cultures.
In order for female refugees to receive fair treatment under asylum law and for their
needs to be addressed at the same level as mens needs, there need to be
mechanisms to overcome misdirected cultural deference, a broader definition of
"persecution," and a statutorily protected group for gender in asylum law.
The international law of gender-specific asylum claims has been evolving
in the past decades due to global pressures and criticisms from scholars,
practitioners and humanitarians.
1
The area of gender-specific asylum law demands
international attention because of its far-reaching repercussions and deep
humanitarian implications.
2
The fair treatment of women in asylum law is a global
issue, as violence against women is widespread and this sad truth reflects a
dangerous mentality of global female subordination that cannot be left unchecked.
3

Further, this is a large-scale, female concern as eighty percent of the twenty-seven
million refugees are women and children.
4
While not all of these women are fleeing
gender-specific abuse and subjugation, the large percentage of refugees that are
women demonstrates that it is necessary for asylum law to address their needs fairly
and for the law to evolve from a male-centered system to a fair, unbiased area of
law.
5

After several decades of intense criticism, the United States has begun to
respond to these issues by instituting both regulatory and legislative changes in the
area of asylum law.
6
Fortunately, the United States has also begun to look to the
policies of other countries that have laws that specifically tackle the needs of female
refugees.
7
However, it is questionable whether these changes are sufficient to
address the needs of female refugees and to eliminate the male-centered biases in

1
Crystal Doyle, Isn't "Persecution" Enough? Redefining the Refugee Definition to Provide
Greater Asylum Protection to Victims of Gender-Based Persecution, 15 W
ASH
& L
EE
J. C
IVIL
R
TS.
& S
OC
. J
UST
. 519, 520 (2009).

2
Id.
3
See id.
4
Danette Gomez, Last in Line-the United States Trails Behind in Recognizing Gender-
Based Asylum Claims, 25 Whittier L. Rev. 959, 959(2004).

5
See id.

6
See id.

7
See id.

2

asylum law.
8
This paper will describe the difficulties faced by female refugees in
achieving asylum in the United States because of substantive and procedural biases
implicit in the law. The paper will begin with a description of asylum law and the
process of being granted asylum and how that process and the current law
discriminate against female refugees. Next, it will address how the law has
historically discriminated against female refugees by looking to case law. New
Immigration and Naturalization Service guidelines published in 1995 will be
analyzed as to whether they have been helpful in bringing about changes in this area
of the law. The methods and policies used internationally will be analyzed as well in
order to seek guidance for reform. The paper will argue that there need to be several
reforms in order to have a body of asylum law that addresses the needs of female
refugees fairly. There need to be reforms made in this area of law because the
current asylum law only adequately addresses the needs of male refugees, to the
detriment of women seeking asylum.
9
The paper will suggest that there be methods
to overcome misplaced cultural deference, a broader definition of persecution,
and a gender class of protection added to the Immigration and Nationality Act
(INA). It will also look to more recent cases to gauge progress in this area.

II. Description of American Asylum Law and the Systematic Discrimination
Against Female Refugees in Case law

A. Background of Asylum Law

International refugee law began to develop after World War II because the
war displaced many people and countries wanted to provide legal protection for
refugees who feared persecution in their home countries.
10
Asylum law has been
developing over the past sixty years and has roots in both statutory and common
law.
11
In the development of international asylum law, women have traditionally
faced extra challenges, including financial restrictions and a lack of resources.
12
As
a result, the law dealt predominately with males seeking asylum and its
development was aimed at their needs.
13
The United States modeled its asylum law
after the 1951 United Nations Convention Relating to the Status of Refugees.
14

With the enactment of the 1980 Refugee Act, the United States adopted most of the
provisions of that UN Convention.
15
The legal authorities involved in American
asylum law includes the Immigration and Nationality Act, federal case law, the
Code of Federal Regulations and international conventions.
16
However, the law has
continued to evolve even after the enactment of the Refugee Act.
17
As an example,

8
See id.
9
See id.

10
Lisa C. Chan, Everything in Moderation: Why Any Gender Nexus Under U.S. Asylum Law
Must Be Strictly Limited in Scope, 29 B.U. I
NT'L
L.J. 169, 170 (2011).

11
See Danette Gomez, Last in Line-The United States Trails Behind in Recognizing Gender-Based
Asylum Claims, 25.
12
See id. at 980.

13
See id. at 975.

14
See id.

15
Aubra Fletcher, The Real Id Act: Furthering Gender Bias in U.S. Asylum Law, 21 BEREKLEY J.
GENDER L. & JUST. 111.

16
Overview of the Law of Asylum, IPMII MA-CLE 31-1.

17
See id.
3

in 1995 new gender guidelines were released to aid in the evaluation of gender-
based applications.
18
U.S. asylum law lacks a consistent approach in adjudicating
gender-based claims in part because of the nature of the legal authorities that govern
this area and the fact that the new gender guidelines are not mandatory.
19
These
factors have led to circuit splits and confusion.
20

B. Purpose of Asylum Law

Give me your tired, your poor, your huddled masses yearning to breathe free, the
wretched refuse of your teeming shore, send these, the homeless, tempest-tossed, to
me: I lift my lamp beside the golden door. Emma Lazarus

The words of Emma Lazarus are engraved on a bronze plaque under the
Statue of Liberty and those words embody the power and purposes of asylum law.
Asylum law has the potential of providing a safe haven to protect women from
gender-based persecution when protection is not available in their home countries.
21

Being granted asylum provides permanent protection for aliens who fear
persecution or have suffered persecution in the past.
22
This area of law is highly
charged with political and emotional complexities and the huge demand for asylum
especially by female refugees reflects global, geo-political issues.
23

C. Process of Achieving Asylum

Achieving asylum in the United States is a multistep process that involves
bureaucratic red tape and may take years to complete.
24
The process begins with an
application for asylum by a non-citizen within one year of arriving in the United
States.
25

Next, an asylum officer reviews the application, interviews the applicant
and decides whether to grant asylum.
26
If asylum is not granted, the applicant is
referred to an immigration judge to begin removal proceedings.
27
The decision of
an immigration judge can be appealed to the Board of Immigration Appeals
(BIA).
28
Applicants can appeal the decision of that Board to federal courts.
29

When a female refugee is applying for asylum, she is beginning a two-step
process.
30
The applicant has to show that she is statutorily eligible for asylum and
then she has to show that discretion should be exercised in favor of granting

18
Lisa C. Chan, Everything in Moderation: Why Any Gender Nexus Under U.S. Asylum Law Must
Be Strictly Limited in Scope, 29 B.U. INT'L L.J. 169, 170 (2011).

19
Id. at 171.

20
Id.

21
See id. at 180.

22
G
ERALD
S
EIPP
, ASYLUM CASE LAW SOURCEBOOK: MASTER INDEX AND CASE
ABSTRACTS FOR U.S. COURT DECISIONS 0.1 (Thomas-Reuters/West, 13
th
ed. 2013).

23
Id.

24
See id.

25
See Immigration and Nationality Act 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B).
26
Regina Germain, Seeking Refuge: The U.S. Asylum Process, Colo. Law, 71, 74 (2006).

27
Id.

28
See id.

29
Id.

30
Id. at 73.

4

asylum.
31
Once a person is found to be statutorily eligible, she is rarely refused
asylum.
32

To be statutorily eligible, the applicant has to qualify as a refugee under
the Immigration and Nationality Act.
33
Refugee is defined as any person who is
outside any country of such persons nationality who is unable or unwilling to
return to, and is unable or unwilling to avail himself or herself of the protection of,
that country because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion.
34
The applicant has to demonstrate that the actions taken against
her amount to persecution.
35
The definition of persecution was articulated in
Matter of Acosta.
36
Persecution is defined as referring to harm or
sufferinginflicted upon an individual in order to punish him for possessing a
belief or characteristic a persecutor sought to overcomethat harm is inflictedby
others that the government was unable or unwilling to control.
37
The well-founded
fear may be based on future persecution or on past persecution, and the
determination of whether a well-founded fear exists is a case-by-case analysis.
38

The analysis requires that the judge consider whether a reasonable person in the
shoes of the applicant would fear persecution if they were returned to their home
country.
39
In other words, there needs to be an objectively reasonable fear of
harm.
40
The credibility of the applicant factors into this analysis as well, and the
persecution faced must be countrywide.
41
The applicant should not be able to
escape the persecution by simply moving within her home country.
42
Next, the
applicant needs to prove that the persecution being faced is on account of race,
religion, nationality, membership in a particular social group, or political
opinion.
43
This nexus component makes satisfying the requirements of an
asylum claim difficult, because it demands evidence of the persecutors state of
mind to show that the persecution was based on one of the five enumerated
categories rather than being based on an unprotected reason.
44

44
For example, a
woman who is habitually beaten and raped by her husband in her home country,
who has tried to have him prosecuted to no avail because police and the government
turn a blind eye to the abuse, would have to demonstrate that there is a causal link,
or rather that her husband is beating her because of her race, religion, nationality,
membership in a particular social group or political opinion. A further example of

31
Id.

32
Id.

33
See Immigration and Nationality Act 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(b).

34
See Immigration and Nationality Act 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A)
35
Id.

36
See Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985)(overruled in part on unrelated grounds by
Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).
37
See id. at 211.

38
See id. at 225.

39
See id.

40
See Immigration and Nationality Act 208(c)(1)(A), 8 U.S.C. 1158(c)(1)(A).

41
See Matter of Dass, 20 I. & N. Dec. 120 (BIA 1989)(holding that burden of proof was not met
when only applicants statements support fear of persecution).

42
See id.

43
Immigration and Nationality Act 208(c)(1)(A), 8 U.S.C. 1158(c)(1)(A).

44
See id.

5

the difficulty in satisfying the nexus requirement can be seen in Fisher v. INS, in
which an Iranian woman claimed she was being persecuted by the Iranian
government after being detained on account of having several strands of hair outside
of her chador and being questioned because her brother-in-law was a dissident.
45

The Court held that any persecution she was experiencing was not on account of
one of the five enumerated categories.
46
The female refugee bears the burden of
proving all of the elements in order to prove her refugee status.
47

D. Case Law Demonstrating Systematic Discrimination Against
Female Refugees

In order to better understand the development of this area of law and the
difficulties faced by female refugees in articulating the abuses perpetrated against
them in such a manner as to fit into one of the enumerated categories, it is
enlightening to look to past case law. In looking at the development of case law in
this area, it is interesting to note that statistics have shown that there are arbitrary
disparities in grants of asylum depending on gender, background, and experiences
of the refugees.
48
The development of case law has been slow in the United States,
but there have been several crucial cases in this area.
49
Most recently between July
2011 and 2012, there have been conflicting opinions from different circuits as well
as continuing tension between the federal courts and the Board of Immigration
Appeals.
50
Different circuits continue to define the statutory terms in varying ways
and the Supreme Court has not stepped in to clarify any area of the law.
51
For
instance, in the past year there have been further circuit splits in defining particular
social group.
52
In Valdiviezo-Galdamez v. Attorney General of U.S, the Third
Circuit joined the Seventh Circuit in including social visibility as part of the
definition of particular social group.
53
This decision was contrary to authority in
the First, Second, Eighth, Ninth, and Eleventh circuits.
54
As demonstrated by this
example, the fate of these female refugees may depend largely on which federal
circuit their immigration proceeding occurs in.
55

Traditionally, female refugees have faced two main obstacles in the quest
to successfully articulate their claim for asylum.
56
The first challenge is that they
must demonstrate that the abuse they are facing is on account of one of the five
enumerated categories: race, religion, nationality, membership in a particular social

45
Fisher v. I.N.S., 79 F.3d 955, 963 (9th Cir. 1996).

46
See id.

47
INA 208(c)(1)(A), 8 U.S.C. 1158(c)(1)(A).

48
Danette Gomez, Last in Line-the United States Trails Behind in Recognizing Gender-Based
Asylum Claims, 25 WHITTIER L. REV. 959, 964 (2004).
49
Id.
50
G
ERALD
S
EIPP
th
ed. 2013).

51
Id.

52
Valdiviezo-Galdamez v. Attorney General of U.S., 663 F.3d 582 (3d Cir. 2011).
53
G
ERALD
S
EIPP
th
ed. 2013).

54
Id.

55
Patricia A. Seith, Escaping Domestic Violence: Asylum As A Means of Protection for Battered
Women, 97 COLUM. L. REV. 1804, 1820 (1997).

56
Id.

6

group, or political opinion.
57
The second difficulty arises in characterizing the
abuse they face as persecution.
58

58
In reference to the first difficulty, the most
common classification used to encompass gender-based claims for asylum within
the definition of refugee is the particular social group category.
59
Women
frequently use the political opinion category as well.
60
The courts have interpreted
particular social group to mean a group of persons, all whom share a common,
immutable characteristic.
61
Historically, courts have construed the INA as not
including persecution on account of gender, stating that persecution based on gender
does not fall within one of the five enumerated categories.
62

Further, the courts have been reluctant to recognize a group of women who
live in a certain country as constituting a particular social group, emphasizing that
the group is too large and stating that just because women face bad treatment and
may live under restrictive laws in other countries, these abuses do not rise to the
particularized sort of persecution contemplated by the INA.
63

Several fundamental cases have been formative in this area of the law.
These cases demonstrate instances in which women are not granted asylum, despite
facing abuses in their home countries. The cases demonstrate the difficulty that
female refugees face in meeting the requirements of the INA. They face such
difficulties regardless of the fact that they are fleeing real abuse and asylum laws are
meant to give them the opportunity to escape those abuses that cannot or are not
prevented in their home countries.
64
For instance, in Sanchez-Trujillo v. INS, the
definition of particular social group was further defined.
65
The Ninth Circuit held
that the terms should not exist without limit but that the group could include
people closely related to each other even if related only by common interest.
66

Also, it has been held that members of a family can constitute a particular social
group.
67
More importantly, the Ninth Circuit has acknowledged that harm
inflicted on women by private actors was not grounds for precluding an otherwise
viable gender-based claim.
68
Campos-Guardado v. INS, is a case that involved a
woman seeking asylum because she was attacked and raped as a result of her
uncles involvement in a political, agrarian movement.
69
The court rejected the
particular social group grounds for asylum, stating that the threat of persecution
resulting from her familial ties did not constitute persecution because of a social
group membership.
70
The court also held that the fact that the attackers chanted

57
Id.

58
Id.

59
Id.

60
Id.
61
Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985).

62
Anne M. Gomez, The New Ins Guidelines on Gender Persecution: Their Effect on Asylum in
the United States for Women Fleeing the Forced Sterilization and Abortion Policies of the
People's Republic of China, 21 N.C. J. INT'L L. & COM. REG. 621, 632 (1996).
63
Id.

64
Id.

65
Sanchez-Trujillo v. I.N.S., 801 F.2d 1571 (9th Cir. 1986).

66
See id.

67
I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).

68
Id.

69
Campos-Guardado v. I.N.S., 809 F.2d 285, 286 (5th Cir. 1987).

70
Id.

7

political slogans during the attack did not demonstrate persecution based on
political opinion.
71
In Gomez v. INS, the court held that broadly-based
characteristics such as youth and gender will not by themselves constitute a
particular social group.
72
In analyzing the case, the court also held that particular
social groups are comprised of individuals who possess some fundamental
characteristic in common to serve to distinguish them in the eyes of the
persecutor.
73
Gomez demonstrates the tension that courts face when construing the
meaning of particular social group.
74
The meaning of the term must be defined
broadly enough so that it classifies an appreciable group that would be large enough
to be generally targeted for persecution, but narrow enough to keep the group
discernable from the rest of society.
75

Cases have demonstrated that it is not easy for a woman to be granted
asylum based on political belief or membership in a particular social group because
of modern ideology or feminist views. In In re S-A, the court expressly stated that
severe beatings of a daughter by her father because of her refusal to conform to
orthodox beliefs was not a claim based on gender or on membership in a particular
social group.
76
Safie demonstrates that women face difficulty establishing grounds
for asylum based on political opinion.
77
In that case, the Iranian government was
persecuting a woman because of her opposition of their policies; she was
interrogated, fired from her job and expelled from school.
78
The applicant was
required to show more than the existence of a repressive regime and her
disagreement with the policies.
79
Another example of a woman being denied
asylum based on political opinion can be seen in Fatin.
80
The court denied the
asylum application based on persecution of a woman by the Iranian government
because of her deep-rooted beliefs in freedom of choice, freedom of expression
and equality of opportunity for both sexes.
81
In that case, the court admitted that
feminists views could constitute a political opinion under the INA, but that the
abuses faced by Fatin did not amount to persecution because her fear was not
sufficiently particularized and bad treatment of women with feminist views was
pervasive, not aimed at her personally.
82
These two cases demonstrate that while
political opinion may be a path for asylum for female refugees, women also face
difficulties in meeting the requirements of that enumerated category.
83

There have been several cases that have demonstrated the difficulty that
some female refugees face in establishing that the abuse they face rises to the level
of persecution. For instance, cases of domestic violence and rape are often not

71
Women, 97 COLUM. L. REV. 1804, 1826 (1997).

72
Gomez v. I.N.S., 947 F.2d 660, 664 (2d Cir. 1991).

73
Id.

74
Id.

75
Women, 97 COLUM. L. REV. 1804, 1827 (1997).

76
In Re S-A-, 22 I. & N. Dec. 1328 (BIA 2000).

77
Safaie v. I.N.S., 25 F.3d 636, 640 (8th Cir. 1994).

78
Id. at 642.

79
Id. at 642.
80
Fatin v. I.N.S., 12 F.3d 1233, 1242 (3d Cir. 1993)

81
Id.

82
Id.

83
Id.

8

considered persecution because of the personal nature of the abuse.
84
For example,
in Klawitter v. INS, the court was reluctant to consider the sexual abuse of a woman
by a colonel in the Polish police and his threats to destroy her career as persecution,
because the incident was a personal dispute.
85
Similarly, in Matter of Pierre, in
which a woman feared death because of her husbands repeated abuse, threats on
her life, and an attempt to kill her.
86
Her husband was a high-ranking Haitian
government official, making it unlikely that she would be able to prosecute him
under criminal laws.
87
Despite this clear abuse, the court dismissed the case and
labeled the matter strictly personal.
88

These cases demonstrate the fact that courts view these abuses as purely
personal, despite the acquiescence of the government.
89
It should be noted that
there is no requirement that harm be public in order for it to constitute persecution;
it merely needs to be perpetrated by a person the government is either unwilling or
unable to control.
90
In theory, the criminal law of the refugees home country
should serve to protect her, but in many instances the authorities refuse to help
these women or the laws do not adequately protect them.
91
The biases that create
this misconception stem from the fact that in the law, mens life experiences and
perspectives have been treated as the norm.
92
Because men do not face the type of
persecution that is more private, than public, the law has an implicit bias against
private forms of persecution, and seeks to exclude it from protection.
93

Although strides have been made in some circuits, the struggle has
continued in others. These cases demonstrate that historically female refugees have
had a difficult time procuring protection under United States asylum law because it
is difficult to include women under the current statutory terms.
94
Despite having
faced legitimate persecution in their home countries, these female refugees have
faced great difficulty. One of the reasons that the law does not adequately protect
the unique needs of female refugees is that women have had little to do with the
drafting of immigration law and have not had a voice in this area.
95
In a 1991 Yale
Law Review article, Catharine MacKinnon addressed this issue more generally by
stating no woman had a voice in the design of the legal institutions that rule the
social order under which women, as well as men, live.
96
The reality of
immigration law and the development of it through cases is that it has focused on
the needs of male refugees.
97

84
Id.

85
Klawitter v. I.N.S., 970 F.2d 149, 151 (6th Cir. 1992).

86
Matter of Pierre, 15 I. & N. Dec. 461 (BIA 1975).

87
Id.

88
Id.
89
See id.

90

91
Id.

92
Lynn Hecht Schafran, Is the Law Male?: Let Me Count the Ways, 69 CHI.-KENT L. REV. 397,
401 (1993).

93
Id.

94
See id.

95
Id.
96
Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281 (1991).

97
See Lynn Hecht Schafran, Is the Law Male?: Let Me Count the Ways, 69 CHI.-KENT L. REV.
397, 401 (1993).

9

III. The Substantive and Procedural Biases Against Female Refugees in Asylum
Law

Female refugees face difficulty due to the substantive biases implicit in the
asylum law such as the narrow definition of persecution, the difficulty in meeting
the nexus requirement, and misplaced cultural deference for oppressive cultures.
As discussed above, women face such difficulties because the laws are written by
men and largely cater to the needs of male refugees seeking asylum rather than
women.
98
Additionally, women also face challenges procedurally when going
through the asylum application process.
99
These biases make it more challenging
for women to be granted asylum.
100

A. The narrow definition of persecution in the INA discriminates
against female asylum applicants

The 1951 Convention and the Refugee Act of 1980 do not define the term
persecution.
101
Commentators believe that this omission was intentional so that
the determination could be made on a case-by-case basis.
102
As a result of the lack
of statutory definition of the term persecution, it is difficult to determine exactly
what a court would deem as persecution in any given case.
103
The Immigration and
Naturalization Service Manual notes that serious violations of basic human rights
can constitute acts of persecution.
104
The Manual also comments that other
smaller violations of human rights may also rise to the level of persecution such as
arbitrary interference with privacy, family, or home.
105
In Matter of Acosta,
persecution is defined as referring to (1) harm or suffering,(2) inflicted upon an
individual in order to punish him for possessing a belief or characteristic a
persecutor sought to overcome,(3) that harm is inflicted,(4) by others that the
government was unable or unwilling to control.
106
It should be noted that the
persecution can either be perpetrated by government officials or it can be
perpetrated by individuals whom the government is either unable or unwilling to
control.
107
Further, the Court states that, general harsh conditions shared by many
other persons do not amount to persecution.
108

Traditionally, gender-based abuses have not been seen as persecution;
instead the abuses have been considered either as isolated personal or cultural
incidents.
109
These abuses have often been excluded from the human rights

98
See id.

99
See id.

100
See id.
101
See id.

102
Crystal Doyle, Isn't "Persecution" Enough? Redefining the Refugee Definition to
Provide Greater Asylum Protection to Victims of Gender-Based Persecution, 15 WASH. &
LEE J. CIVIL RTS. & SOC. JUST. 519, 531 (2009).

103
Anjana Bahl, Home Is Where the Brute Lives: Asylum Law and Gender-Based Claims of
Persecution, 4 CARDOZO WOMEN'S L.J. 33, 42 (1997).

104
Id.
105
Id.
106

107
Id.
108
Id
.

109
10

discourse generally.
110
The traditional conception of persecution has been limited
to incidence of genocide, slavery, torture, arbitrary arrest, and detention.
111
To
not recognize that females face different forms of persecution than men is
unrealistic.
112
American asylum law is riddled with gender inequality partially
because the law has been directed towards aiding those who suffer persecution from
more public activities that are more intertwined with the state, such as politics.
113

However, it should be noted that abuse against women which is perpetrated in
private has in fact been politically motivated such as the rape of women because of
the political affiliation of their male relatives.
114
Women often suffer in the private
sphere, and this makes it more difficult for them to fit into the definition of
persecution.
115
As it will be discuss in the International Perspective section of
this paper, this narrow view of persecution is out of touch with international norms.
Other countries, such as Canada, have more progressive policies towards granting
female refugees asylum.
116

Additionally, the definition of persecution has an element of either
involvement or complicity by the state.
117
The persecution has to either be inflicted
by state actors or out of their control, in the sense that the authorities are powerless
to prevent the abuse.
118

Persecution against women often falls into the category of complicity by
the state since the state may have gaps in their laws that leave women vulnerable or
the police force may simply choose not to enforce laws meant to protect women.
119

The definition of persecution needs to treat such omissions as commission of a
persecutory act by the state.
120
Therefore, acts of violence in the private sphere
should still amount to persecution because there are instances in which authorities
condone or turn a blind eye to protecting women.
121
In order for female refugees to
be treated fairly, instances in which the authorities condone or ignore abuse despite
the fact that the actual abuse may occur in the private sphere need to be deemed
incidents of persecution.
122

B. Description of nexus requirement through case law the nexus
requirement provides yet another barrier for female refugees attempting to achieve
asylum

A female refugee applying for asylum must prove that the persecution

Greater Asylum Protection to Victims of Gender-Based Persecution, 15 WASH. & LEE J. CIVIL
RTS. & SOC. JUST. 519, 531 (2009).

110
Id.
111
Id. at 527.
112
Id. at 521.
113
Id.
114
Id.
115
Id.
116
Id.
117
Persecution, 4 CARDOZO WOMEN'S L.J. 33, 42 (1997).
118
Id.
119
Id. at 40.

120
Id.

121
Id. at 35.

122
Id. at 41
11

perpetrated against her is on account of membership in one of the five enumerated
categories. This is referred to as the nexus requirement.
123
The question in this
analysis is whether the applicants membership in the enumerated category was at
least one central reason for the persecution.
124
Courts have held that in cases
where multiple motives are possible, there is causation as long as one motive is the
persecutory grounds.
125
In the instances where the enumerated category in question
is political affiliation or membership in a specific social group, courts have a
difficult time recognizing that the nexus requirement has been met.
126
The INS
Guidelines have provided examples of what exactly is meant by the nexus
requirement.
127
For instance, they point to INS v. Elias- Zacarias, in which the
court discussed the nexus requirement in the context of political opinion.
128
The
Supreme Court emphasized, that persecution must be threatened or inflicted on
account of the victims political opinion.
129
This makes it clear that the political
opinion of the persecutor is irrelevant to the analysis under the nexus
requirement.
130
The Guidelines further give the following example: if a Nazi
regime persecutes Jews, it is not, within the ordinary mean of language, engaging in
persecution on account of political opinion, but rather on the basis of religion (the
characteristic of those persecuted).
131
The harm has to be inflicted in order to
punish the victim for having one or more of the characteristics protected under the
statute.
132
The U.S. has adopted one of the most demanding nexus tests.
133
It
requires that the applicant prove the persecutors state of mind.
134
In meeting the
burden, the female refugee can use both direct and circumstantial evidence.
135

The causal relationship requirement in the INA poses a problem because
the nexus analysis cannot be done completely independently of the particular
category that the woman is seeking to qualify for.
136
Courts look first to the
particular ground for persecution before looking to the motive; therefore, the
problems implicit in the fact that women have difficulty fitting into any of the

123
Natalie Rodriguez, Give Us Your Weary but Not Your Battered: The Department of Homeland
Security, Politics and Asylum for Victims of Domestic Violence, 18 SW. J. INT'L LAW 317, 323
(2011).

124
Id.
125
Id.

126
Id.

127
8 IMMIGRATION LAW SERVICE 2D PSD SELECTED DHS DOC. 800.

128
I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992)(establishing high threshold for

demonstrating persecution on account of political opinion).
129
See id.

130
See id (explaining that the political opinion of guerilla organization threatening applicant if he
did not join the effort, was not important, only the political opinion of the applicant had legal
significance).

131
8 IMMIGRATION LAW SERVICE 2D PSD SELECTED DHS DOC. 816

132
See Acosta, 19 I&N Dec. at 226.

133
Susanne J. Prochazka, There Is No Honor in Honor Killings: Why Women at Risk for Defying
Sociosexual Norms Must Be Considered A "Particular Social Group" Under Asylum Law, 34 T.
JEFFERSON LAW REV. 445, 462 (2012).

134
Id.
135
00-02 IMMIGR. BRIEFINGS 1.

136
Susanne J. Prochazka, There Is No Honor in Honor Killings: Why Women at Risk for Defying
Sociosexual Norms Must Be Considered A "Particular Social Group" Under Asylum Law, 34 T.
JEFFERSON LAW REV. 445, 462 (2012).
12

enumerated categories spill into the nexus requirement analysis.
137
Further, the
private nature of the persecution suffered by many female refugees often makes it
hard to prove the persecutors intent.
138
Demonstrating that there was intent to
harm the refugee is not sufficient to show a nexus between the enumerated
categories and the persecution.
139
The refugee is left with the burden of proving
the state of mind of her persecutor in order to demonstrate that the persecutor was
targeting the refugee based on one of the five enumerated categories.
140
This
requirement often prevents deserving female refugees from being granted
asylum.
141

C. The Barrier of Misplaced Cultural Deference

Women also do not get fair treatment in asylum law because of misplaced
deference that oppressive cultures are afforded.
142
Many of the abuses that female
refugees face in their home countries are socially acceptable and even
sanctioned.
143
Abuses such as honor killings, infanticide, and female genital
mutilation all stem from cultural or social patterns.
144
Asylum law is often times
plagued with cultural biases in its administration.
145
For example, the laws
disfavor for considering private abuse as persecution, even when the state does not
protect the woman, indicates this type of cultural bias.
146
There is deference to
what cultures perceive as acceptable behavior in private.
147
Further, it has been
recognized that cases in which the other culture involved is seen as inferior or
barbaric towards women often end in the women being granted asylum, as those
cultures are afforded less deference.
148
Meanwhile, cases involving cultures that
are considered more western often result in deference towards the culture of the
country in question because the country is seen as similar to the United States and
there is an ingrained and implicit desire to allow for more deference.
149
As a
result, it is important to gather circumstantial evidence about the country of origin
in order to better address these cultural biases.
150

D. Women face procedural biases in the asylum application process

Female refugees often apply jointly with male family members for asylum

137
Id.
138
Id.
139
Id.
140
Id.
141
Id.
142
Meghan Casey, Refugee Women As Cultural Others: Constructing Social Group and Nexus for
Fgm, Sex Trafficking, and Domestic Violence Asylum Claims in the United States, 10 SEATTLE J.
FOR SOC. JUST. 981, 1036 (2012).
143
See id.
144
Id. at 1024.
145
Id.
146
Id.
147
Id. at 1031.
148
Id.
149
Id.
150
Id.
13

who may prepare the application without input from the female refugee.
151
Due to
the social stigma associated with many of the abuses inflicted on these women, the
women may be reluctant to report these abuses to their male family members.
Thus, many of the abuses may go unreported.
152
Even when the women apply
alone for asylum, they may be guided by a male community member or they may
be reluctant to divulge sensitive information to a male interpreter.
153
A similar
problem arises when the female refugees are dealing exclusively with male
immigration judges and asylum officers.
154

Women who are seeking asylum because of gender-based persecution
have likely faced very traumatic abuses and are confronting deep emotional
issues.
155
Many of these women may be dealing with Post Traumatic Stress
Disorder. This is a serious emotional disorder that could cause memory
impairment, difficulty in concentration, and inappropriate emotional response or
numbness.
156
The emotional state of the victims in these cases makes it difficult
to elicit important information about the female refugees past; that information is
essential to the asylum petition.
157
It also raises concerns about the victims ability
to testify in court.
158
The judge may expect the victim to act in an emotionally
distraught manner, while the victim may appear numb, causing the judge to be less
sympathetic.
159
The emotional and psychological states of the asylum seekers in
these cases present procedural difficulty in their fair representation.
160
If these
difficulties are not properly explained and understood, the female refugee is at a
serious disadvantage.
161
While a similar phenomenon may be seen in any torture
victim, many people in the immigration system are less aware of these issues as
they pertain to female refugees.
162
Also, female refugees may be reluctant to
reveal their experiences, while male torture victims often will discuss their
experiences more openly, as less shame is associated with them.
163
As a result,
more attention may be required in this area to ensure that the needs of these women
are met.
164
In order for lawyers to be able to adequately represent these female
refugees, they need to understand the emotional impact of the abuses faced by these
women.
165
Medical and expert testimony may help articulate these issues to a

151
Aubra Fletcher, The Real Id Act: Furthering Gender Bias in U.S. Asylum Law, 21 BERKELEY J.
GENDER L. & JUST. 111, 113 (2006).
152
Id.
153
Id.
154
Id.
155
Andrea E. Bopp Stark, Posttraumatic Stress Disorder in Refugee Women: How to
Address Ptsd in Women Who Apply for Political Asylum Under Grounds of Gender-Specific
Persecution, 11 GEO. IMMIGR. L.J. 167 (1996).
156
Id.
157
Id.
158
Id.
159
Id.
160
Id.
161
Sunny Kim, Gender-Related Persecution: A Legal Analysis of Gender Bias in Asylum Law, 2
Am. U. J. GENDER SOC. POLY & L. 107, 124 (1994).
162
Andrea E. Bopp Stark, Posttraumatic Stress Disorder in Refugee Women: How to
Address Ptsd in Women Who Apply for Political Asylum Under Grounds of Gender-Specific
Persecution, 11 GEO. IMMIGR. L.J. 167, 180 (1996)
163
Id.
164
See id.
165
See id.
14

judge and to improve the female refugees chances of being perceived as
credible.
166

IV. Why the Gender Consideration Guidelines, Released in 1995, Have
Not Brought Equality to American Gender-Based Asylum Claims

A. Description of the Guidelines

In 1995, the Immigration and Nationality Service (INS) released a
memo titled: Considerations for Asylum Officers Adjudicating Asylum Claims
from Women (guidelines).
167
The memo was written to provide guidance in
dealing with asylum claims from women, based wholly or in part on their
gender.
168
The guidelines are directed at immigration officers and are aimed at
getting them to consider that women may face persecution unique to their
gender.
169
The issuance of the guidelines was considered a significant step towards
addressing the specific needs of women in asylum law.
170
These guidelines were
largely a response to international changes in the recognition of gender-specific
asylum claims, specifically similar guidelines issued by Canada.
171
In 1993,
Canada was the first country to issue such guidelines.
172
The guidelines recognized
abuse based on gender alone as a basis for an asylum claim.
173
By 1994, asylum
advocates presented proposed guidelines to the Immigration and Nationality
Service.
174
About a year later, the guidelines were released, but were not as
expansive as the proposed guidelines.
175
The stated goals of the guidelines are: (1)
to permit the United States to keep pace with international developments in human
rights;(2) to provide for uniformity and consistency in the application of the law;
and (3) to improve the Asylum Officers abilities to deal with sensitive procedural
and substantive issues involving gender-based asylum claims.
176

Substantively, the guidelines acknowledge two types of persecution that
women could possibly face: gender-specific persecution and gender-related
persecution.
177
The guidelines provide that sexual abuse, rape, infanticide,
genital mutilation, forced marriage, slavery, domestic violence, and forced
abortion are examples gender-specific persecution.
178
On the other hand, the
guidelines state that gender-related persecution occurs when women are seeking
asylum from countries that maintain laws and customs which discriminate on the
basis of gender.
179
Additionally, the officers are instructed not to assume that

166
See id.
167
Diana Saso, The Development of Gender-Based Asylum Law: A Critique of the 1995 Ins
Guidelines, 8 HASTINGS WOMEN'S L.J. 263, 274 (1997).
168
Id.
169
Id.
170
Id.
171
Id.
172
Id.
173
Id.
174
Id. at 269.
175
Id.
176
Id.
177
Id. at 270.
178
Id.
179
15

sexual violence is motivated by purely personal reasons and that it may in fact be
tied to a womans political opinion or membership in a particular social group.
180

Despite these instructions on sensitivity, the guidelines make no changes to the
substantive requirements.
181
The female refugee still needs to show that the harm
is motivated by one of the five enumerated categories rather than by purely
personal reasons.
182

Procedurally, the guidelines attempt to help with the interviewing process
and address some of the procedural biases against women as well.
183
It is
suggested that female officers conduct the interviews and that the female refugee
be given the opportunity to be interviewed away from her family.
184
The
guidelines address some of the procedural difficulties faced by female refugees by
providing advice for the asylum officers on delicate issues and on the effect of
these abuses.
185
The guidelines also give preference to female interpreters.
186

They state that the testimony of the female applicant should not be diluted by a
male interpreter and that the applicants should be interviewed without male family
members being present.
187
The guidelines also call for cultural sensitivity in
assessing the credibility of the female refugee.
188
Likewise, they suggest that
asylum officers be understanding towards the applicants, who may have good
reason to mistrust authority figures and government officials, as those individuals
did not help them in their home countries.
189

B. Why the Guidelines are Inadequate

While the creation of these guidelines indicates a moment of
enlightenment in the area of American asylum law, the guidelines suffer from
serious flaws and shortcomings that inhibit the development of equality in asylum
law in the United States.
190
One of the major shortcomings of the guidelines is
that they do not bind immigration judges, the Board of Immigration Appeals, or
the federal courts.
191
All of these administrative bodies have discretion as to
whether to use the considerations in their decision-making process.
192
This
seriously limits the impact and the benefit of these guidelines and makes the

People's Republic of China, 21 N.C. J. INT'L L. & COM. REG. 621, 638 (1996).
180
Id.
181
Id.
182
Id.
183
184
Id.
185
Id.
186
Id. at 270.
187
Id.
188
Andrea E. Bopp Stark, Posttraumatic Stress Disorder in Refugee Women: How to Address
Ptsd in Women Who Apply for Political Asylum Under Grounds of Gender-Specific
Persecution, 11 GEO. IMMIGR. L.J. 167, 178 (1996).
189
190
Id.
191
Id.
192
Id.
16

asylum process one of luck for the female refugee.
193
The female refugee needs to
have the good fortune of dealing with an asylum officer or an immigration judge
who decides to follow the guidelines.
194
The administration of asylum law needs
to be consistent in order to treat similarly-situated female and male asylum
applicants the same.
195
Adding to these concerns is that the guidelines are not
systematically adhered to.
196
The reality of these guidelines not being effective is
demonstrated by the fact that only about 800 more women will be granted asylum
in the United States because of the INS Guidelines.
197
This number clearly
demonstrates that the guidelines have not made a large difference in the
administration of the asylum process nor in the jurisprudence of gender-specific
asylum claims.
198

Other shortcomings include a lack of specificity. For example, while the
guidelines provide examples of gender-related and gender-specific persecution, they
fail to provide sufficient examples to adequately educate the asylum officers.
199
For
instance, the guidelines fail to mention the refusal to wear the chador or veil as a
source of gender-related persecution, despite the fact that this has been the basis for
at least four asylum claim cases.
200
In addition, the guidelines provide that female
refugees may base their gender-related or gender-specific asylum claims on any of
the five enumerated categories in the INA and provide examples of some of the
forms of abuse that may rise to the level of persecution, such as torture and threats
on a womans life.
201
However, they fail to describe what role gender plays in the
formation of an asylum application.
202

The guidelines do not provide sufficient parameters for assessing the
credibility of a female applicant applying for asylum based on a gender-specific
abuse.
203
They fail to take into account the cultural norms in other countries that
would affect the female refugees knowledge about her male family members
political, military or social affairs.
204
In many cultures, women are not informed
about those matters and the guidelines should reflect this.
205
Without this guideline,
asylum officers are likely to interpret this lack of knowledge as a lack of credibility
on the part of the applicant.
206
Finally, poor interview techniques, cultural
insensitivity, and lack of information about the applicant can result in real harm to
the female applicant in this process.
207

Further, while the guidelines provide that once it has been determined
that a woman has faced gender-specific abuse, such as sexual abuse, a female

193
Id.
194
195
Id.
196
Id. at 270.
197
Id.
198
Id.
199
Id.
200
Id.
201
Id.
202
Id.
203
Id.
204
Id.
205
Id.
206
Id.
207
Id.
17

asylum officer should interview the applicant. The guidelines specifically state
that a female asylum officer should be provided only to the extent that personnel
resources permit.
208
However, they specifically provide that an interview should
not be cancelled because a female asylum officer could not be found to conduct
the interview.
209
This demonstrates that the INS places administrative and
procedural concerns above the needs of the female refugee, who has faced such
abuse.
210

Similarly, while the guidelines express a preference for female
interpreters, they provide that if a gender-based asylum applicant arrives with a
male interpreter, the interview should not be cancelled and the guidelines place
the burden on the female refugee to provide her own interpreter.
211
The fact that
the refugee herself must supply the female interpreter, if needed, limits the
usefulness of this rule, and unfairly burdens the refugee, who likely has no
contacts in the United States and no knowledge of immigration law.
212

The guidelines provided asylum advocates hope of future significant
changes in this area of law, but they have been disappointing. Inefficiencies
pervade the guidelines and the fact that they are merely advisory greatly limits
their effect.
213
They do not create an environment in the law for uniform and
consistent adjudications of gender-based asylum claims.
214
This area of law is
still developing and strides need to be made in case law in order to better address
these problems. In the meantime, when a female refugee applies for asylum on
the basis of gender-specific persecution, she is in a perilous position.

V. An International Perspective How Other Countries Have Dealt with Gender
Discrimination in their Nations Asylum Laws

American asylum law has developed through international conventions,
statutory law, the common law, and guidelines.
215
Asylum law has its statutory
roots in two international treaties: The United Nations Convention Relating to
the Status of Refugees and the 1967 Protocol.
216
The five grounds now found in
the INA for asylum were developed in these international treaties.
217
The
United States aligned itself with these conventions in 1968.
218
In 1985, the UN
made efforts to remedy the fact that gender was excluded from the statutory
language of the definition of a refugee.
219
The High Commissioner for
Refugees Executive Committee issued a report recognizing that women face

208
Id.
209
INS Guidelines at 5.
210
See id.

211
Guidelines, 8 H
ASTING
W
OMEN'S
L.J. 263, 274 (1997).
212
Id.
213
Id.
214
Id.
215
Danette Gomez, Last in Line-The United States Trails Behind in Recognizing Gender-
Based Asylum Claims, 25 W
HITTIER
L. R
EV
. 959, 963 (2004).
216
Id. at 961.
217
Id.
218
Id.

219
Id.
18

special difficulties, like sexual and physical abuse.
220
It recognized that states
should extend protection afforded by the convention to women refugees who are
persecuted on account of their opposition to social tradition.
221
The UN came
out with guidelines on the Protection of Refugee Women,
222
while the United
States has lagged behind the international community.
223
These international
advancements demonstrate that the international community has played a major
role in advancing the needs of female refugees.
224

The United States discriminatory policy is contrary to the approach that
has been taken by the international community.
225
Various countries have
approached these issues differently and although there are similarities in some of the
solutions proposed, there continues to be international disagreement about what
should be done to best address the particular needs of female refugees.
226
For
instance, Canada was the first nation to recognize that the persecution of women on
the basis of gender alone may constitute grounds for asylum and has continued to be
a leader in this area.
227
The Canadian guidelines set out four non-exclusive
categories for persecution directed at women: persecution in similar circumstances
as men, persecution related to kinship, persecution based on gender discrimination,
and persecution based on failing to conform to or for transgressing gender-
discrimination, religious or customary laws and practices in their country of
origin.
228
In a notable Canadian case, the Supreme Court of Canada held that
gender could form the basis of a particular social group category because gender is
a group that is defined by an innate or unchangeable characteristic.
229
The
Canadian Guidelines and the Supreme Court decisions have demonstrated that
Canada has taken positive steps towards recognizing the special needs of female
refugees in their applications for asylum.
230

The United Kingdom, Australia, and New Zealand have taken various
approaches to deal with this issue. The United Kingdom, through its adoption of its
own gender guidelines in 2000 and subsequent Supreme Court cases have indicated
an enlightened approach to gender-specific asylum claims, much like Canada.
231
In
the Supreme Court case of Islam v. Secretary of State for the Home Department, the
Court held that gender could form part of the particular social group in granting
two Pakistani women asylum because of abuses perpetrated by their husbands.
232

220
Id.

221
Id.
222
Id.
223
Id.
224
See id.

225
See id.

226
Id.
227
Provide Greater Asylum Protection to Victims of Gender-Based Persecution, 15 WASH.
& LEE J. CIVIL RTS. & SOC. JUST. 519, 542 (2009).
228
People's Republic of China, 21 N.C. J. I
NT'L
L. & C
OM
. REG. 621, 622 (1996).

229
Greater Asylum Protection to Victims of Gender-Based Persecution, 15 WASH. & LEE J. CIVIL
RTS. & SOC. JUST. 519, 542 (2009).

230
Id.
231
Id.
232
Islam v. Secretary of State for the Home Department, 2 A.C. 629 (1999).

19

New Zealand has similarly followed an analogous trajectory, while South Africa
and Ireland have taken a more direct approach by incorporating gender into their
statutes.
233
In Ireland, for instance, the refugee act itself states that membership in a
particular social group can be based on belonging to the female or male
gender.
234 235
These countries have embraced a slightly broader definition of
persecution as well, but most strides have been made in the area of expanding the
definition of a particular social group.
236

Several civil law countries have also taken very proactive steps towards the
fair treatment of women in asylum law. Spain, Sweden, and Germany have all
drafted their statutory definitions of particular social group to include
membership based solely on gender.
237
Other countries have not made as
many strides, such as Switzerland, the Netherlands and Norway, which have
adopted some of the guidelines, but do not statutorily provide any protection
for refugee women applying for asylum.
238
These countries are less willing to
recognize gender alone as a basis for membership in a particular social
group.
239
While many of these civil law countries have embraced a broader
definition of persecution, Switzerland has a limited definition; the law does not
recognize persecution by non-state actors as persecution under the refugee act
and this seriously limits female refugees ability to successfully achieve
asylum in that country.

VI. Proposed Changes to Asylum Law to Improve Fairness And Recent Case
Law Demonstrating Some Advancements

A. Overcoming Cultural Deference to Female Subjugation

In order for American asylum law to be fair and consistent, there must be a
way to overcome the misplaced deference to cultures that are oppressive towards
women. Womens human rights are often threatened by claims that the provision of
womens rights is a threat to family, social stability and moral order.
240
An
example of this can be seen in the strong opposition expressed to the Equal Rights
Amendment in the United States.
241
Both men and women who believed that the

233
Provide Greater Asylum Protection to Victims of Gender-Based Persecution, 15 WASH. &
LEE J. CIVIL RTS. & SOC. JUST. 519, 542 (2009).

234
Irish Refugee Act, 1,(1996) available at
http://www.irishstatutebook.ie/1996/en/act/pub/0017/sec0001.html, see also Crystal
Doyle, Isn't "Persecution" Enough? Redefining the Refugee Definition to Provide Greater Asylum
Protection to Victims of Gender-Based Persecution, 15 WASH. & LEE J. CIVIL RTS. & SOC.
JUST. 519, 560 (2009).

235
See also Crystal Doyle, Isn't "Persecution" Enough? Redefining the Refugee Definition to
Provide Greater Asylum Protection to Victims of Gender-Based Persecution, 15 Wash. & Lee J.
Civil Rts. & Soc. Just. 519, 560 (2009).

236
Id. at 543.
237
Id.

238
Id. at 523.

239
Id.at 541.
240
See Crystal Doyle, Isn't "Persecution" Enough? Redefining the Refugee Definition to
Provide Greater Asylum Protection to Victims of Gender-Based Persecution, 15 W
ASH
. &
L
EE
J. C
IVIL
R
TS.
& S
OC
. J
UST.
519, 560 (2009).
241
Id. at 521.

20

amendment was going to upset the social order and the correct family structure
opposed its ratification.
242
Internationally, the advancement of womens rights is
viewed with suspicion and fear and as an encroachment of western ideals on
traditional cultures.
243
In many situations, the subordination is socially
sanctioned.
244
Female genital mutilation is an example of a form of oppression that
is socially acceptable, because it is justified by religion, mythical beliefs and
tradition.
245
The cultural deference argument gains authority from the long tradition
of global colonization and conflict in global politics.
246
A good way to help
overcome these cultural deference arguments is to ensure that the change comes
from within the country itself.
247
Womens groups have been increasing in
popularity and influence across the globe, and they have been able to successfully
change social notions on some important issues, such as foot binding in China.
248

While these local womens organizations have been able to make some strides and
advances, they still face much difficulty in fighting the cultural deference afforded
to female subjugation.
249
The leaders of these organizations receive threats on their
lives, and they meet social and political resistance.
250
Although the path is difficult,
the best opportunity for change can come from within those countries
themselves.
251
The international community, through international human rights
organizations, needs to fight the misplaced cultural deference that repressive
traditions are afforded across the globe by supporting local groups.
252
The way to
combat the social deference is to begin to make changes within the cultures
themselves.
253

B. Considering a broader definition of persecution

There needs to be a broader definition of persecution in order to fairly
reflect the abuses and dangers that are faced by female refugees. The broadening of
the definition should have been part of the guidelines issued in 1995. Because there
is no statutory definition of persecution, providing for a broader definition in the
guidelines would have offered guidance for the courts and would have led to more
consistency and a more uniform application of the law.
254

Adopting a broader definition of persecution in this area of the law would also
help female refugees be treated fairly in the asylum application process. It would
reflect the difference between the persecution faced by men and women, while
treating both forms as unacceptable.
255
Further, the United States should adopt a
similar approach as that embodied in the Canadian Guidelines on the subject. The

242
Id. at 534.

243
Id. at 530.

244
Id. at 555.

245
Id.
246
Id.
247
Id. at 530.

248
Id. at 545.
249
Id.
250
Id.
251
Id. at 550.
252
Id. at 555.
253
Id. at 551.
254
Id.
255
Id.
21

Canadian Guidelines state that women who are subjected to violence, domestic and
otherwise, because they are physically vulnerable, culturally suppressed or for other
reasons, face violence amounting to persecution, because of their particular
vulnerability as women in their societies and because they are so unprotected.
256

Those Guidelines do a good job of recasting the definition of persecution so as to
encompass unique female experiences of abuse.
257
Although the definition of
persecution was originally intended to address abuses faced by men, now the
definition should be recast in order to include those abuses experienced by both
sexes.
Some people argue that the definition of persecution should remain
narrow in order to keep US immigration rates down.
258
They argue that a broader
definition would allow women with allegations of general mistreatment to enter
the country and remain.
259

This view ignores humanity and the effect would be to grant asylum to
more men than women.
260
Also, this has been demonstrated to be statistically
incorrect, as Canada and other countries with more liberal asylum laws have not
experienced huge influxes of refugee women seeking gender-based asylum.
261

C. Adding a sixth, gender-specific category to the INA

Gender should be a class within the INAs definition of refugee in
order to protect women against the persecution they face, because other
categories do not appropriately fit the difficult situations faced by female
refugees.
262
The particular social group grounds has been rendered a
residuary, meant to capture what the other categories do not, but it fails to
adequately address the needs of refugee women.
263
This category has been
demonstrated to be inadequate in the various cases that have held that gender is
not sufficient to constitute membership in a particular social group.
264
The
other categories are similarly geared towards the experiences of male refugees
and do not allow women to properly articulate their equally meritorious asylum
claims.
265

Providing for a sixth category would allow for more clarity and
fairness in asylum law. Including gender within the INA itself would help
eliminate some of the inconsistency in application of asylum law as well.
266

There is much confusion and inconsistency, in part, because asylum law is
administered by two agencies: Department of Homeland Security and Board of

256
Persecution, 4 C
ARDOZA
W
OMENS
L.J. 33, 43 (1997).
257
Id. at 40.

258
Id.
259
Id. at 35.

260
Id.
261
See id. at 34.

262
Id. at 55.

263
Danette Gomez, Last in Line-The United States Trails Behind in Recognizing Gender-Based
Asylum Claims, 25 W
HITTIER
L. R
EV
. 959, 976 (2004).

264
Id.
265
Id. at 973.

266
Id. at 961.

22

Immigration Appeals.
267
A clear legislative act would ensure that women who
face persecution would receive a fair adjudication of their asylum claim
regardless of which agency is involved.
268

The arguments against including gender as its own category are
unfounded.
269
There is a floodgate argument that adding this category would
lead to frivolous claims.
270
It is claimed that statistics suggest that women
would flood the borders, but this is inconsistent with the realities reflected by
international and domestic statistics.
271
This phenomena has not been
experienced by countries that have adopted gender as its own grounds for
asylum or that have more liberal policies towards female refugees, such as
Canada.
272
Specifically, in Canada, in the several years after gender was
recognized as a basis for an asylum claim, the total number of asylum
applications dropped from 350 out of 31,000 total applications to 175 in
1999.
273

Also, there are sufficient safeguards in the US asylum process to offset
any floodgate effect.
274
Providing that gender is an enumerated category is only
one part of the asylum application and the burden for the female refugee is still
high to meet the other requirements.
275
The applicant still has to prove that the
abuse was severe enough to rise to the level of persecution, the persecution must
cause her to have a well-founded fear of harm, she must demonstrate that the
persecution was on account of her gender (nexus requirement) and that the
fear is nationwide because the country is unwilling or unable to stop the
persecution.
276
All of these requirements are intended to narrow the class of
individuals granted asylum.
277

Adding a gender category to the INA would raise worldwide
awareness on the struggles of female refugees.
278
The recognition of female
needs in this area would reinforce the United States commitment to human
rights.
279
The arguments against including gender as an enumerated category
in the INA are unfounded and would portray the United States as indifferent to
the needs of women who are suffering from persecution. Inclusion will also
help spur other countries to take action in these areas so that women will not
have to flee in the future.
280

267
Id. at 970.

268
Id.
269
Id.
270
Id
.

271
Marian Kennady, Gender-Related Persecution and the Adjudication of Asylum Claims: Is A
Sixth Category Needed?, 12 F
LA
. J. I
NT'L
L. 317, 339 (1998).

272
Id.
273
Natalie Rodriguez, Give Us Your Weary But Not Your Battered: The Department of Homeland
Security, Politics and Asylum for Victims of Domestic Violence, 18 S
W
. J. I
NT'L
L. 317, 340 (2011).
274
Id.

275
Id. at 318.

276
Id. at 335.

277
Id. at 321.

278
Id.
279
Id.
280
Id.

23

D. Does Recent Case Law Demonstrate Positive Change?

Relatively recent cases suggest that some circuits are making strides in
developing fair case law for the adjudication of asylum claims. In Matter of M-
K, asylum was granted to a woman based on her fear of being subjected to
female genital mutilation, persecution by her husband because she refused to
act in a subservient manner, and her political beliefs.
281282
The notable portion
of this opinion demonstrates that courts are willing to see persecution that is
perpetrated in private and condoned by state authorities as persecution under
the INA.
283
The court also provided that if there is a law that targets women
either on its face or in its application, and this law imposes requirements on
women that are not imposed on men, and if the penalty for the violations are
serious, then a claim for gender-based persecution is to be recognized.
284
Also,
where the country does not punish offenses against women such as rape and
murder, or where women are not granted protection against these abuses, this
will be deemed gender-based persecution.
285
This case shows a broadening of
the definition of persecution to encompass abuses faced by women and that
are condoned or ignored by the government.
286
It legitimizes these types of
situations and grants them status as constituting persecution.
287
In In re
Fauziya Kasinga, the court recognized women who had not undergone female
genital mutilation and who were opposed to in a specific tribe as a particular
social group.
288

289
The court also opined that the particular social group was
defined by common traits, which cannot or should not have to be changed.
290

In this instance, the court stated that the characteristic of having intact
genitalia is one that is so fundamental to the individual identity of a young
woman that she should not be required to change it.
291

An example of the expansion of the definition of particular social group
can be seen in Fatin v. INS. In that case, an Iranian woman was under threat of
being persecuted by government authorities because of her feminist views, her
nonconformity with religious requirements and her refusal to wear a veil.
292

293
She
argued that the social group that she was a member of was a group of upper class,
educated, and westernized Iranian women who asserted the political opinion that
women should be afforded equal rights.
294
The lower court stated that she was

281
Persecution, 4 C
ARDOZO
W
OMEN'S
L.J. 33, 63 (1997).

282
See also Matter of M-K-, cited in 72 Interpreter Releases, at 1188.
283
Id.

284
Persecution, 4 C
ARDOZO
W
OMEN'S
L.J. 33, 63 (1997).

285
Id. at 50.

286
Id. at 61.

287
Id.
288
In Re Kasinga, 21 I. & N. Dec. 357 (BIA 1996).
289
Id.
290
Id. at 358.

291
Id. at 361.
292
Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993).

293
Id. at 1235.

294
Id.
24

under no real threat of persecution, but the Third Circuit accepted the conclusion
that sex was an inherent characteristic and could form the basis of membership in
a particular social group under the definition in Matter of Acosta.
295
It has been
argued that the Fatin case stands for the proposition that gender is a particular social
group for purposes of qualifying as a refugee under the INA.
296
Fatin, however,
could not convince the court that she was facing a threat of persecution solely on the
basis of membership in the group.
297
The court stated that she did not present
evidence that her convictions were of the requisite zeal.
298
This case demonstrates
some advancements in the courts willingness to accept that membership in a
particular social group can be based on sex alone, but does not address the problems
regarding the narrow definition of persecution and reflects some biases towards
women, in requiring that they prove their convictions reach a requisite level of
zeal.
299
Safie v. INS is another example of how the definition of persecution
remains too narrow to properly accommodate the needs of female refugees.
300

301

In that case, the court agreed with the Fatin courts analysis of membership in a
particular social group, but did not feel that an Iranian woman opposing the sexist
government regime and being punished, amounted to persecution.
302
These cases
demonstrate some advancements in making asylum law more receptive to the needs
of female refugees, but many more strides need to be made before female refugees
are on equal footing with male refugees, in the eyes of American asylum law.

VII. Conclusion

The deprivation of female refugees of fair treatment in the asylum
application process is a global human rights issue, not just a domestic, American
legal issue. As consciousness about human rights violations and the unique
difficulties faced by women increases, our legal framework needs to include
adequate measures to help women escape these brutalities. The law governing
gender-based asylum claims continues to reflect both substantive and procedural
biases against refugee women that stem from male-centered legal standards and a
misplaced respect for oppressive cultures. In order for asylum law to fairly address
the needs of women, there needs to be mechanisms to overcome misdirected
cultural deference, a broader definition of "persecution" within the law, and a
gender-specific protected group in asylum law. While these suggestions would help
ensure that the needs of all refugees were fairly addressed by the law, there are still
other challenges ahead. There are other difficulties in implementing changes in
asylum law, such as the fact that refugee issues are often overshadowed by a
political debate about immigration policy.
303
Such debates are often characterized
by anti-immigrant points of view, like the belief that illegal immigration is eroding

295
Id. at 1233.

296
Id. at 1237.

297
Id. at 1237.

298
Id.
299
Id.
300
Safaie v. I.N.S., 25 F.3d 636, 639 (8th Cir. 1994)(superseded by statute on other grounds), see
also Rife v. Ashcroft, 374 F.3d 606, 614 (8th Cir. 2004).
301
Id. at 637.

302
Id. at 637.

303
Danette Gomez, Last in Line-The United States Trails Behind in Recognizing Gender-Based
Asylum Claims, 25 W
HITTIER
L. R
EV
. 959, 975 (2004).
25

political and social stability.
304
Also, there are procedural difficulties, such as the
fact that INS is backlogged with asylum applicants.
305
These concerns and debates,
however, do not warrant the nation turning its back on morality and not aiding or
furthering the legitimate needs of these refugee women just as would be done for
refugee men. In order for strides to be made in this area of law, it should be made
very clear that the process of seeking asylum often becomes a gender issue that
needs special consideration. The inherent bias in asylum law and its negative effect
on women impacts entire communities and society as a whole because as long as
women are harmed, so is society.
306

304
Id. at 976.
305
Id. at 975.

306
Id.

26

QUANTUMS OF FORCE: DISPELLING PSUEDO AMBIGUITIES OF
PHYSICAL FORCE UNDER THE LAUTENBERG AMENDMENT
THROUGH THE APPLICATION OF CANONS OF CONSTRUCTION

Luis S. Baez

INTRODUCTION

On October 2, 2012, Zina Haughton called the police from a gas station.
1

She was not wearing any shoes, her makeup was running, her shirt was ripped, and
it looked like she was crying.
2
She told police officers that her husband, Radcliffe
Haughton, forcefully removed her cell phone from her bra.
3
Police officers
noticed and asked Zina about the scrapes and swelling on her face, but she refused
to acknowledge the injuries.
4

This was not Zinas first experience of domestic violence at the hands of
her husband. Earlier in 2011, Radcliffe was charged with disorderly conduct after
police officers responded to a 911 call and saw him pointing a gun at Zina.
5
The
charges were dropped when the responding officer did not appear in court.
6
Six days
later, Zina sought a restraining order against Radcliffe.
7
The order described his
threats to kill her if she ever left him.
8
Even though the court ordered Radcliffe to
turn over any firearms in his custody, police officials did not confirm his
compliance.
9
His Google Plus profile picture shows him pointing a firearm towards
the camera.
10

On Sunday, October 21, 2012, Radcliffe made his way to the Azana Spa
across the street from a local mall in Brookfield, Wisconsin
11
where Zina worked.
12

Radcliffe opened fire, injuring seven women and killing Zina and two other women
before fatally shooting himself.
13
Unfortunately, tragedies like these are all too
common between domestic partners in the United States.
14
Addressing the roots of

1
Lisa Black, Police Went to Spa Shooter's Home Nearly 20 Times, CHICAGO TRIBUNE (Oct. 26,
2012), http://articles.chicagotribune.com/2012-10-26/news/chi-police-went-to-spa-shooters-home-
nearly-20-times-20121026_1_police-officer-cell-phone-gas-station.
2
Id.
3
Id.
4
Id.
5
Dinesh Ramde, Radcliffe Haughton Had History Of Abuse; Killed 3, Himself At Azana Day Spa
In Wisconsin, HUFFINGTON POST (Oct. 22, 2012),
http://www.huffingtonpost.com/2012/10/22/radcliffe-haughton-profile-abuse_n_2000235.html.
6
Id.
7
Id.
8
Id.
9
Dylan Stableford, Shooting at Spa in Wisconsin: 4 Dead, Including Gunman, Police Say,
YAHOO! NEWS (Oct. 21, 2012), http://news.yahoo.com/blogs/lookout/mall-shooting-wisconsin-
brookfield-180854621.html.
10
Google +, https://plus.google.com/114684843666136639922/about (last visited Oct. 6, 2013).
11
Stableford, supra note 9.
12
Id.
13
Id.
14
Susan Murphy-Milano, Murder: The Ticking Time Bomb in Domestic Violence Cases, FORBES
(Nov. 29, 2011), http://www.forbes.com/sites/crime/2011/11/29/murder-the-ticking-tomb-bomb-
in-domestic-violence-cases/2/. For example, a man in Chicago was shot and killed by police during
a response to a 911 call that he shot one person and wounded another in an apparent domestic
homicide case. Regina Waldroup, Cop Fatally Shoots Man in Domestic Violence Incident, NBC
27

domestic violence and its challenges in the United States is complex and involves
active outreach programs, federal and state law enforcement authorities, and the
judiciary. Adding to this complexity is the presence of firearms. Recent statistics
indicate that sixty-one percent of female homicide victims were killed by a spouse
or intimate partner, and these homicides most often involved a firearm over any
other weapon.
15

Recognizing the relationship between firearms and proven domestic
abusers, the Lautenberg Amendment revised the Gun Control Act of 1968 to
prevent such abusers from possessing firearms (Amendment).
16
In short, the
Amendment makes it illegal for a person convicted of a misdemeanor crime of
domestic violence to possess or receive firearms.
17
Under the Amendment,
[A] misdemeanor crime of domestic violence is an offense that is
a misdemeanor under federal or state law and has, as an element,
the use or attempted use of physical force or the threatened use of
a deadly weapon, committed by (1) a current or former spouse,
parent, or guardian of the victim; (2) a person with whom the
victim shares a child in common; (3) a person who is cohabiting
with or has cohabited with the victim as a spouse, parent, or
guardian; or (4) a person similarly situated to a spouse, parent, or
guardian of the victim.
18

A goal of the Amendment is to ensure that firearms are kept out of the
hands of those capable and convicted of a crime of domestic violence.
19
But judicial
interpretation of physical force under the Amendment has threatened its
effectiveness in reaching that goal.
20
Federal courts of appeal are split on the
application and meaning of physical force under the statute.
21

Some courts of appeal conclude that the slightest touching under common
law battery or assault within a jurisdiction qualifies as physical force by way of

Chicago (Oct. 4, 2013), http://www.nbcchicago.com/news/local/Cop-Fatally-Shoots-Man-in-
Domestic-Violence-Incident-226516391.html. A woman named Maria decided to enter a domestic
violence shelter after suffering domestic abuse at the hands of her husband who tried to kill her by
attempting to throw her out of a window. Safe Horizon, Maria's Story: Survivor of Domestic
Violence, available at http://www.safehorizon.org/index/what-we-do-2/our-stories-82/marias-
story-92.html. Sometime in February of 2013, a Time photographer documented a couple and their
struggles with domestic violence. Her photos of Shane screaming at Maggie, choking her, and
cornering her and her daughter can all be seen at
http://lightbox.time.com/2013/02/27/photographer-as-witness-a-portrait-of-domestic-violence/#25.
15
Nicole Flatow, Supreme Court Will Consider Whether Domestic Violence Conviction Barred
Gun Possession, THINK PROGRESS (Oct. 1, 2013),
http://thinkprogress.org/justice/2013/10/01/2708061/supreme-court-to-review-whether-domestic-
violence-conviction-barred-gun-possession/.
16
18 U.S.C. 922(g)(9) (1996). Hereinafter referred to as the Amendment.
17
Id.
18
Id (emphasis added).
19
142 CONG. REC. S1187201 (Sept. 30, 1996) (statement of Sen. Lautenberg).
20
See infra Part III.
21
See Eric Andrew Pullen, Guns, Domestic Violence, Interstate Commerce, and the Lautenberg
Amendment:"(S)imply Because Congress May Conclude That a Particular Activity Substantially
Affects Interstate Commerce Does Not Necessarily Make It So, 39 S. TEX. L. REV. 1029, 1034
(1998); Polly McCann Pruneda, The Lautenberg Amendment: Congress Hit the Mark by
Banning Firearms from Domestic Violence Offenders, 30 ST. MARY'S L.J. 801, 808 (1999).
28

simple application of the plain meaning of the words.
22
Other courts of appeal hold
that a battery or assault conviction that does not require more than an offensive
touching is not physical force within the meaning of the Amendment.
23
These
courts prefer a violent form of physical force.
24
The line of cases interpreting the
Amendment began in 1999.
25
The Sixth Circuit Court, on September 19, 2012,
weighed in on the physical force issue in United States v. Castleman.
26
Though it
seemed as if the Supreme Court would let the circuit split continue, it recently
granted certiorari in Castleman on October 1, 2013 to resolve the statutory
ambiguity.
27
Notably, October is also Domestic Violence Awareness Month.
28

Though commentators have examined and analyzed this issue in the past,
several recent judicial decisions have altered the landscape surrounding the
interpretation of physical force.
29
Moreover, scholarly commentators have either
not applied classic tools of statutory construction to resolve the ambiguity or only
cursorily advanced the plain meaning of physical force under the Amendment.
This Article applies those textual canons of construction to identify the intended
meaning of physical force, while rebutting the arguments offered by courts that
have addressed the issue.
While the Lautenburg Amendments future remains to be seen, one thing is
clear: Radcliffe Houghton and similarly situated domestic abusers should never
possess firearms. Any conviction of domestic violence, no matter how slight,
justifies the prohibition. Furthermore, the problem with the violent interpretation of
physical force is that such analysis ignores the realities of domestic violence and
Congressional intent to stop that violence.
30
Domestic violence is progressive.
31

Verbal abuse escalates into physical abuse.
32
The violent form is bad policy and

22
See infra Section II.A.
23
See infra Section II.B.
24
See infra Section II.B. For reference, this view is hereinafter referred to as the violent form or
interpretation.
25
United States v. Smith, 171 F.3d 617 (8th Cir. 1999).
26
United States v. Castleman, 10-5912, 2012 WL 4096234 (6th Cir. Sept. 19, 2012).
27
Amy Howe, Wednesday Round-up, SCOTUSblog (Oct. 2, 2013), http://www.scotusblog.com/
2013/10/wednesday-round-up-201.
28
NATIONAL COALITION AGAINST DOMESTIC VIOLENCE, DOMESTIC VIOLENCE AWARENESS
MONTH, available at http://www.ncadv.org/takeaction/DomesticViolenceAwarenessMonth.php.
29
Abigail Browning, Domestic Violence and Gun Control: Determining the Proper
Interpretation of "Physical Force" in the Implementation of the Lautenberg Amendment, 33
WASH. U. J.L. & POL'Y 273 (2010); Tanjima Islam, The Fourth Circuit's Rejection of Legislative
History: Placing Guns in the Hands of Domestic Violence Perpetrators, 18 AM. U. J. GENDER SOC.
POL'Y & L. 341, 344 (2010); Babak Lalezari, Domestic Violence: Enough Is Enough, Any Force Is
Enough, 1 PHOENIX L. REV. 295, 299 (2008); Tom Lininger, A Better Way to Disarm Batterers,
54 HASTINGS L.J. 525, 527 (2003); Adam W. Kersey, Misdemeanants, Firearms, and Discretion:
The Practical Impact of the Debate over "Physical Force" and 18 U.S.C. S 922(g)(9), 49 WM. &
MARY L. REV. 1901, 1902 (2008); Melanie C. Schneider, The Imprecise Draftsmanship of the
Lautenberg Amendment and the Resulting Problems for the Judiciary, 17 COLUM. J. GENDER & L.
505 (2008); John M. Skakun III, Violence and Contact: Interpreting "Physical Force" in the
Lautenberg Amendment, 75 U. CHI. L. REV. 1833, 1834 (2008).
30
See infra Section I.A.
31
Carolyn S. Hennecy, Domestic Violence Verbal and Emotional Abuse Are Progressive,
DOMESTIC VIOLENCE AWARENESS, http://carolynhennecy.com/domestic-violence-
awareness/2011/domestic-violence%E2%80%94verbal-and-emotional-abuse-are-progressive/.
32
Id.
29

inconsistent with the plain meaning of the Amendment.
33
The Supreme Court
should use Castleman to reject the violent form. Courts analyzing the meaning of
physical force under the Amendment do not need to go beyond the plain meaning
of the statute. Any other method of statutory interpretation undermines the purpose
of the Amendment.
34
Zinas attempts at escaping domestic abuse illustrate this
point.
35
As she wrote in her request for a restraining order, even [Radcliffes]
threats, were enough to terrorize her every waking moment.
36

Part I of this Article briefly examines the legislative history and
development of the Lautenberg Amendment while identifying the primary purpose
of the law. Additionally, Part I surveys research of the causes and roots of domestic
abuse in the United States. Part II examines the current federal circuit split and
regarding the interpretation of physical force. Furthermore, Part II also analyzes
different tools of statutory interpretation, and contends that the plain meaning is
the only interpretive tool that should be utilized for purposes of the Amendment.
Part III examines the practical consequences the federal circuit split on the
interpretation of physical force has on law enforcement attempting to enforce the
Amendment while predicting the Supreme Courts decision in Castleman.
Reflecting on domestic abuse in the United States, this part illustrates how these
decisions frustrate efforts to keep guns out of the hands of domestic violence
misdemeanants.

I. DISARMING DOMESTIC VIOLENCE MISDEMEANANTS

Efforts at preventing domestic violence in the United States date back to
1871 when Alabama rescinded the right of husbands to beat their wives.
37
Slowly,
state and federal government began to respond to advocates of womens rights.
38
To
this day, the National Coalition Against Domestic Violence sponsors a Domestic
Violence Awareness Month each year to advocate the pressing need for
awareness.
39
Furthermore, in the early 1990s, Senator Frank Lautenberg of New
Jersey sought to remove guns and firearms from domestic violence situations.
40
The
Senator advanced efforts at adequate gun control and regulation in other contexts,
but passed away on June 4, 2013.
41

33
See infra Part III.
34
Id.
35
Ramde, supra note 5.
36
Id.
37
OFFICE OF VIOLENCE AGAINST WOMEN, THE HISTORY OF THE VIOLENCE AGAINST WOMEN
ACT, available at http://www.ovw.usdoj.gov/docs/history-vawa.pdf (last visited Oct. 6, 2013).
38
Id.
39
Id.
40
A Report by the Offices of Senator Frank R. Lautenberg, The Domestic Violence Gun Ban Ten
Years Later: Lives Saved, Abusers Denied,
http://www.lautenberg.senate.gov/documents/domestic/THE%20DOM
ESTIC%20VIOLENCE%20GUN%20BAN.pdf. (last visited Feb. 21, 2013).
41
Jennifer Bendery, Frank Lautenberg Refuses To Pull Gun Control Amendment From
Cybersecurity Bill, HUFFINGTON POST (July 31, 2012),
http://www.huffingtonpost.com/2012/07/31/frank-lautenberg-gun-control_n_1725467.html; Adam
Clymer, Frank Lautenberg, New Jersey Senator in His 5th Term, Dies at 89, N.Y. TIMES (June 3,
2013) http://www.nytimes.com/2013/06/04/nyregion/frank-lautenberg-new-jersey-
senator.html?pagewanted=all&_r=0.
30

A. The Legislative Intent of the Lautenberg Amendment

Section 18 U.S.C. 922(g)(9) is a 1990 addition to the Gun Control Act of
1968, and is commonly referred to as the Lautenberg Amendment.
42
Senator
Lautenbergs comments before the Senate on the Amendment reflect both the
intention and need to keep firearms out of the hands of those who commit domestic
violence.
43
As Lautenberg stated, his Amendment will prohibit anyone convicted
of a crime involving domestic violence from possessing firearms.
44
One goal of his
Amendment was to reach past assailants who pleaded down to a misdemeanor and
got away with a slap on the wrist without facing harsher charges for domestic
violence.
45
The Senator commented on the progressive nature of conflicts and
altercations between domestic partners, noting that arguments often escalate, and .
. . get out of control.
46

The Senator also addressed what types of domestic violence crimes
qualified under the statute.
47
Lautenberg noted the ban applies to crimes that have,
as an element, the use or attempted use of physical force, or the threatened use of a
deadly weapon.
48
In the Senators view, anyone who attempts or threatens
violence against a loved one has demonstrated that he or she poses an unacceptable
risk, and should be prohibited from using firearms.
49
He noted that convictions for
domestic violence-related crimes often are for crimes, such as assault, that are not
explicitly identified as related to domestic violence.
50

Senator Lautenberg also commented on domestic violence and his
provision during a hearing on a different statute.
51
Lautenberg noted that his
Amendment, establish[ed] a policy of zero tolerance when it comes to guns and
domestic violence.
52
Lautenberg stated that 1,500 women have been murdered
because of domestic abuse involving a gun, and that [m]any of these murders
would never have happened but for the presence of a gun.
53
He concluded that over
two million cases of domestic violence in households are reported each year, and
that 150,000 of those show a gun present, a firearm present, during a violent rage
or an argument. We ought not to expose those people who are abused by a spouse
or a father to further violence by enabling them to have a gun, with the permission

42
18 U.S.C. 922(g)(9). There are nine other classes of people that are prohibited from shipping,
transporting, receiving, or possessing firearms under the statute: persons convicted in any court of
a crime punishable by imprisonment for a term exceeding one year; fugitives from justice;
unlawful users or addicts of any controlled substance as defined in Section 102 of the Controlled
Substances Act; persons adjudicated as mentally defective or committed to mental institutions;
unauthorized immigrations and most nonimmigrant visitors; persons dishonorably discharged from
the U.S. Armed Forces; persons who have renounced their U.S. citizenship; persons under court-
order restraints related to harassing, stalking, or threatening an intimate partner or child of such
intimate partner; and persons under indictment in any court of a crime punishable by imprisonment
for a term exceeding one year. 18 U.S.C. 922(g)-(n).
43
142 CONG. REC. 26, 674 (1996) (Statements of Sen. Lautenberg).
44
Id. at 675.
45
Id.
46
Id.
47
Id.
48
Id. at 674.
49
Id.
50
142 CONG. REC. S1187201, *S11878 (1996) (emphasis added).
51
142 CONG. REC. 19,415 (1996).
52
Id.
53
Id.
31

of our country.
54

Despite the Senators clear intentions regarding the role his Amendment
would play in curbing the use of firearms in domestic violence, his comments are
not binding when courts interpret the language of the Amendment. Courts utilize a
long-standing framework for determining the meaning of ambiguous or ill-defined
statutory language.
55
Academics have identified a hierarchy of weight courts should
give to different forms of legislative history.
56
Committee reports are of the most
significance.
57
Courts use committee reports based on their content and context.
58

They are not considered reliable because they are often doctored as drafters
anticipate their eventual use in court as an aid to interpreting legislative language.
59

Following committee reports in rank are author or sponsor statements like those of
Senator Lautenberg.
60
These are considered reliable because they are made or
prepared by someone familiar with the drafting of the legislation.
61
However, these
statements only represent the opinion of one drafter and not what all of Congress
intended for the legislative language to mean.
62
Other statements by members of
Congress, hearing records, and Presidential or agency statements also have a place
in this hierarchy, respectively.
63

Although this hierarchy is interesting fodder for judicial academics, it is of
little practical consequence. Courts are neither strictly obligated to follow it nor are
they limited in interpreting relevant legislative history to their legislative and policy
preference.
64
This reality makes utilizing the legislative history of the Amendment
especially problematic.
65
Though the legislative history discussed above seems to
favor a de minimus interpretation of physical force, courts have crafted ways to
hold the opposite when interpreting the same legislative record.
66
Nonetheless,
when the Supreme Court examines the issue, the statements by Senator Lautenberg
on his Amendment should prove difficult to overcome.
67

In particular, one statement warrants special attention. The Senator noted
that the Amendment aimed to capture individuals who pled down to a
misdemeanor.
68
As the discussion of cases below will show, several of the
defendants appealing their convictions under the Amendment did commit acts of
violence against their domestic partner which captures the violent form of physical
force, but pled down to a lower form of assault or battery.
69
Because courts are not
allowed to look to the facts underlying convictions, but instead, only the language
of the statute criminal defendants are convicted under, several defendants may have
escaped potential punishment that Congress initially intended under the

54
Id.
55
LISA SCHULTZ BRESSMAN ET AL., THE REGULATORY STATE 287 (2010).
56
Id.
57
Id.
58
Id.
59
Id.
60
Id.
61
Id.
62
Id.
63
Id. at 288.
64
Id. at 289.
65
Id. at 285.
66
See infra Part II.
67
See infra Part III.
68
142 CONG. REC. 26, 675 (1996) (Statements of Sen. Lautenberg).
69
See infra Part III.
32

Amendment.
70

B. The Tumultuous Relationship between Domestic Violence and Firearms

The dangerous role firearms may play in a relationship already plagued
with domestic abuse is readily apparent. The amount of guns or firearms in the
United States has grown since the 1990s.
71
As of 2009, the estimated total number
of firearms in the United States is around 310 million.
72
In 2010, statistics indicate
that 10,000 of 14,478 murders in the United States involved firearms.
73
In the
context of domestic abuse, more than three times as many women are murdered
from firearms by their spouse or domestic partners rather than a stranger.
74
In 2000,
1,247 women were killed by their domestic partners.
75
More recently, of all females
killed with a firearm, nearly two-thirds of them were killed by their domestic
partners.
76
In 2007, 612 deaths of intimate-partner-related homicide occurred.
77
In
2010, there were 1336 incidents of murder between intimate partners.
78

Literature in medical and psychological fields note the impact guns have
on those prone to domestic abuse.
79
Access to firearms increases the risk of
homicide between domestic partners by more than five times the rate than without
the presence of guns or firearms.
80
Handguns are the preferred firearms in the
context of domestic violence and were used in over 70% of cases of domestic
homicide in 2002.
81
When a domestic partner owns a gun, there is a five-fold
increase in the risk of domestic violence or murder.
82
Between 1998 and 2001, more
than 2,800 people with a misdemeanor domestic violence conviction purchased

70
This is referred to as the categorical approach. As John M. Shakun puts it, the approach
requires two steps: first, the court must establish the elements of the proposed predicate offense;
second, the court must determine whether one of those elements is the use of physical force. John
M. Shakun, Violence and Contact: Interpreting Physical Force in the Lautenberg Amendment,
75 U. CHI. L. REV. 1833, 1835 (2008).
71
WILLIAM J. KROUSE, CONG. RESEARCH SERV., RL32842, GUN CONTROL LEGISLATION 4
(2012).
72
Id. at 5. The steady trend of gun availability is apparent: In 1994, there were only 192 million
firearms available within the United States.
73
Id. at 6.
74
Violence Policy Center, When Men Murder Women: An Analysis of 2002 Homicide Data:
Females Murdered by Males in Single Victim/Single Offender Incidents (2004),
http://www.vpc.org/studies/wmmw2004.pdf.
75
Callie Marie Rennison & Sarah Welchans, Intimate Partner Violence 1993-2001, U.S.
DEPARTMENT OF JUSTICE BUREAU OF JUSTICE STATISTICS (2003),
http://www.ojp.usdoj.gov/bjs/abstract/ipv01.htm.
76
Id.
77
Debra L. Karch, et. al., Surveillance for Violent Deaths, NATIONAL VIOLENT DEATH
REPORTING SYSTEM (2007), http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5904a1.htm.
78
UNIFIED CRIME REPORTS, Crime in the United States (2010), http://www.fbi.gov/about-
us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/10shrtbl10.xls.
79
See J. C. Campbell, Risk Factors For Femicide in Abusive Relationships: Results From A Multi-
Site Case Control Study, 93 AM. J. PUBLIC HEALTH 7 (1999).
80
Id.
81
Violence Policy Center, A Deadly Myth: Women, Handguns, and Self-Defense (2001),
http://www.vpc.org/studies/myth.htm.
82
Johns Hopkins University Center for Gun Policy and Research, Firearms and Intimate Partner
Violence (2003), http://www.jhsph.edu/gunpolicy/IPV_firearms.pdf.
33

guns without being identified by the National Instant Criminal Background Check
System.
83

Within the past year, national attention has turned to policy debates over
effective gun control and safety in the United States.
84
Shootings in Aurora,
Colorado
85
and Sandy Hook,
86
Connecticut, have captured the attention of Congress
and President Barack Obama.
87
Amidst upcoming legislative or executive initiatives
to promote effective gun control, policymakers and the Supreme Court should not
overlook the purposes, goals, and victims of domestic violence that the Amendment
seeks to protect.
The legislative history of the Lautenberg Amendment supports the
proposition that the purpose of the law was to disarm convicted abusers capable of
committing even the slightest form of domestic violence.
88
However, courts
interpreting physical force to mean violent physical force have undermined the
Amendments goals. A consequence of the split among courts is a non-uniform
application of the Amendment, and ineffective enforcement of the law by federal
police officials.
89
The following section analyzes the conflicting interpretive
arguments.

II. A BANEFUL SPLIT

A. The Plain Meaning of Physical Force

Undoubtedly, the Supreme Court will examine precedent on the
interpretation of physical force. On one hand, it can side with the de minimus
interpretation seen in the Eighth, First, and Eleventh circuit courts. On the other
hand, it can side with the violent form of physical force in unison with the Tenth,
Ninth, Fourth and Sixth circuit courts. In an attempt to better understand the legal
underpinnings of the conflict, this Section analyzes the history of the circuit split.

83
U.S. GOVT ACCOUNTABILITY OFFICE, GAO-02-720, OPPORTUNITIES TO CLOSE LOOPHOLES IN
THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM (2002).
84
Michael Cooper, Obama Gun Proposal to Look Beyond Mass Shootings, N.Y. TIMES, (Jan. 15,
2013), http://www.nytimes.com/2013/01/16/us/politics/obama-gun-proposal-to-look-beyond-mass-
shootings.html?_r=0.
85
John Ingold, Colorado Mental Health Institute Fights Release of James Holmes' Tests, DENVER
POST (Sept. 27, 2013) http://www.denverpost.com/breakingnews/ci_24192519/colorado-mental-
health-institute-fights-release-james-holmes.
86
Mary Beth Merklein, Schools Tighten Security After Sandy Hook, USA TODAY (Sept. 24, 2013)
http://www.wral.com/sandSchoy-hook-parent-searching-for-middle-ground-on-gun-
issues/12961642/.
87
Peter Baker & Michael Shear, Obama to Put Everything Ive Got Into Gun Control, N.Y. TIMES
(Jan. 16, 2013), http://www.nytimes.com/2013/01/17/us/politics/obama-to-ask-congress-
to-toughen-gun-laws.html?ref=us&_r=0; Philip Rucker & Ed OKeefe, Obamas Far-Reaching
Gun-Proposals Face Uncertain Fate in Divided Congress, WASH. POST (Jan. 16, 2013),
http://articles.washingtonpost.com/2013-01-16/politics/36384024_1_gun-violence-gun-
buyers-universal-background-checks; J.F., Round Up the Guns! Or Don't, THE ECONOMIST (Jan.
24, 2013), http://www.economist.com/blogs/democracyinamerica/2013/01/gun-control-1.
88
See infra Section III.B.
89
See infra Section III.C.
34

1. The Eighth Circuits Unambiguous Application of Force

In 1994, William Smith pled guilty to a simple misdemeanor assault under
Iowa law after a dispute between him and Lauralee Lenson, the mother of his
child.
90
In 1996, using a gun he purchased from a gun store with fake identification,
the then twenty year-old Smith shot Lenson.
91
A grand jury indicted him with one
count of making false representations in connection with the purchase of a firearm
and one count of possessing a firearm though having been convicted of a
misdemeanor crime of domestic violence under the Amendment.
92

The Eight Circuit Court of Appeals reviewed Smiths motion to appeal the
district courts decision denying his motion to dismiss the indictment under the
Amendment.
93
The dispositive question in Smith was deciding whether the
defendants guilty plea under Iowa Code 708.2(4) qualifies as a proper predicate
offense under the Amendment.
94
Because the Iowa Code defines assault in two
different ways, the court had to make a determination to which definition Smith
pled guilty.
95

The first definition of assault under the Iowa Code describes an assault as
an act with the intention to cause pain or injury, or an act which is intended to cause
physical contact that is insulting or offensive.
96
The second definition describes
assault as an intentional act designed to place another in fear of painful, offensive,
or injurious conduct.
97
The court noted that because the Amendments language
requires the existence of an element of physical force in a predicate offense, it
looks only to the language of the predicate offense and not the actual, underlying
acts providing the basis for the defendants sentence.
98
This is referred to as the
categorical approach.
99

Relying only on the complaint of the lower court to show that the
accusation against Smith involved acts intending to cause injury or pain to other, the
court concluded that Smith was charged, and pled guilty to, the first definition of
assault under the Iowa code requiring some level of physical contact.
100
It held that
the guilty plea properly qualified as the predicate offense under the Amendment
because it did have an element of physical force.
101
The Eighth Circuit decided
Smith in 1999, only three years after the passage of the Amendment.
102
Unlike the
cases that follow, there is no mention of ambiguity in the legislative history.
103

Furthermore, there is no use or implementation of statutory canons of construction
to define the meaning of physical force within the meaning of the Amendment.
104

The Eight Circuit implicitly adopted the plain meaning of physical force when it

90
United States v. Smith, 171 F.3d 617, 617 (8th Cir. 1999).
91
Id.
92
Id.
93
Id.
94
Id. at 618.
95
Id.
96
Id. at 619.
97
Id. (emphasis added).
98
Id.
99
Id. at 620.
100
Id.
101
Id. at 613.
102
Id.
103
See generally United States v. Smith, 171 F.3d 617 (8th Cir. 1999).
104
Id.
35

held that Iowas definition of assault including requiring only some level of physical
contact qualified as the predicate offense under the Amendment.
105

2. A First Circuit Defense of Congressional Intent

Even though he pled guilty to Maines general-purpose assault statute for
attacking his wife in 1998, Robert Nason pawned and later redeemed a firearm.
106

Sometime later, a Maine state trooper questioned him about a rifle and five other
firearms.
107
An indictment for violating the Amendment soon followed.
108
When
Nason pled guilty to the 1998 assault charge, the indictment did not specify between
either of the two possible definitions of assault under Maine law.
109
The first assault
definition describes assault as an intentional causation of bodily injury and the
second qualifies assaults as causing intentional physical offensive contact to
another.
110
Nason appealed the district courts decision to not dismiss the indictment
under the Amendment to the First Circuit Court of Appeals.
111

The First Circuit in United States v. Nason addressed whether the all-
purpose Maine assault statute qualifies as a predicate offense with an element of
physical force under the Amendment.
112
Instead of applying the categorical
approach described in Smith, the court looked to the formal definitions of words
within the state and federal statutes.
113
Reasoning that an analysis of these formal
definitions alone would provide an unambiguous answer to the dispositive question
of the case, the court described other methods of analyzing the Maine statute and
922(g)(9) as superfluous.
114
Analysis otherwise, according to the court, would be
like administering a Rorschach test without any inkblots.
115

Starting with the plain meaning of the text,
116
the court looked to the
definition of physical force in Blacks Law Dictionary.
117
Summarizing the
various definitions, the court concluded that physical force describes, violence,
power, and pressure directed against another persons body.
118
The court noted that

105
Id.
106
United States v. Nason, 269 F.3d 10, 11 (1st Cir. 2001).
107
Id.
108
Id.
109
Id.
110
Id. at 12.
111
Id.
112
Id. at 14.
113
Id. The court also described the categorical approach: Before engaging in a categorical
approach, one first must have established the formal definition of the particular predicate
offense, a process that necessarily requires determining the requisite elements of the statute
of conviction. The appellant's attempt to establish the formal definition of a misdemeanor
crime of domestic violence by direct resort to a categorical approach thus puts the cart
before the horse.
114
Id. at 15.
115
Id.
116
Id. To resolve this issue, we turn to time- honored principles of statutory construction. Where
statutory interpretation is in prospect, the jumping- off point always is the text of the statute itself.
(citing United States v. James, 478 U.S. 597, 604 (1986); United States v. Charles George
Trucking Co., 823 F.2d 685, 688 (1st Cir.1987)).
117
Id.
118
Id. This venerable reference work defines physical force as force consisting in a physical
act. BLACK'S LAW DICT. (7th ed.1999) The word force means [p]ower, violence, or pressure
directed against a person or thing). (emphasis added).
36

interpretations are valid so long as they are not absurd.
119
The court held that this
analysis resolved the issue.
120

Nonetheless, the court used various tools of statutory construction to prove
its point.
121
Because the section of the Gun Control Act preceding the Amendment
explicitly mentions the use of physical force that actually causes physical injury,
and 922(g)(9) does not, one can infer that Congress expressed its intent by
excluding physical force causing physical injury under the Amendment.
122

Furthermore, because the legislative history indicated Senator Lautenbergs efforts
at ensuring a broad definition, physical force is easy to qualify.
123
The First
Circuit concluded that the meaning of physical force under the Amendment was
straightforward and that looking to other parts of the statute would be improper.
124

To support its conclusion through the application of the plain meaning rule,
the court looked to the statutory construction of 922(8)(C)(ii), the provision
immediately proceeding 922(g)(9).
125
Because that provision strips the ability of
someone subject to a court order that prohibits the use, attempted use, or
threatened use of physical force . . . that would reasonably be expected to cause
bodily injury of their right to gun possession, Congress made clear its intent to
remove the bodily injury element from 922(g)(9).
126
As this Article addresses, later
courts use the same analysis to come to the opposite holding.
Because district judges were contradicting one another in their application
of Maine assault statutes to the Amendment, the First Circuit in Nason referred to
the plain meaning and two other tools of statutory construction in order to reconcile
the application of physical force.
127
This court supports a very low threshold for
physical force and contends that Congress intended that to be the case.
128
Though
it does take an extra step of analysis than the Eighth Circuit did in Smith, the end
results are consistent. The First Circuit also comments on the applicability and
effectiveness of the categorical approach in favor of a simpler means of defining
its statutes.
129
As other cases will show, however, using legislative history and other
tools of statutory construction may create an equally supported interpretation in
response.
130

119
Id. at 18.
120
Id.
121
Id.
122
Id.
123
Id; 142 CONG. REC. S11,877 (1996) (statement of Sen. Lautenberg) [T]he revised language
includes a new definition of the crimes for which the gun ban will be imposed. Under the original
version, these were defined as crimes of violence against certain individuals, essentially family
members. Some argued that the term crime of violence was too broad, and could be interpreted to
include an act such as cutting up a credit card with a pair of scissors. Although this concern seemed
far-fetched to me, I did agree to a new definition of covered crimes that is more precise, and
probably broader. Under the final agreement, the ban applies to crimes that have, as an element,
the use or attempted use of physical force, or the threatened use of a deadly weapon. This is an
improvement over the earlier version, which did not explicitly include within the ban crimes
involving an attempt to use force, or the threatened use of a weapon, if such an attempt or threat
did not also involve actual physical violence.
124
Nason, 269 F.3d at 18.
125
Id.
126
18 U.S.C. 922(g)(8)(C)(ii).
127
See Nason, 269 F.3d at 18.
128
Id.
129
Id.
130
See infra Section III.A.
37

3. An Eleventh Circuit Defense of Common Sense

Sometime around August 2000, Jerry Griffith hit his wife Delores and
dragged her across a floor.
131
He later pleaded guilty to two counts of simple battery
under Georgia law.
132
Two years later, Georgia state officials found him in
possession of a firearm.
133
He pled guilty to charges of violating section
922(g)(9).
134
Attempting to dismiss his conviction for violation of the Amendment,
Griffith contended that the Georgia battery statute under which he was convicted
does not contain physical force as an element.
135
The Eleventh Circuit Court of
Appeals addressed the issue in United States v. Griffith.
136

The Georgia statute defines battery as intentional physical contact of an
insulting or provoking nature.
137
Immediately, the court turned to identifying the
plain meaning of the statute.
138
According to the court, a person is incapable of
making insulting or provocative physical contact without using physical force.
139
It
also pointed out that Congress explicitly provided for physical force meant to cause
bodily injury in the section of the law immediately proceeding the language of
922(g)(9), much like the First Circuit in Nason.
140
The Eleventh Circuit believed
that if Congress intended the same standard to apply to the Amendment, Congress
would have explicitly done so.
141

The court also analyzed cases on the opposite side of the split, and
disagreed.
142
It took a firm stance on those courts holding otherwise:
We do not agree that it is the function of courts to assign criminal
responsibility. That is the function of Congress. In carrying out
the assignment of responsibility that Congress has decided upon
[the Amendment], courts should be faithful to the language that it
has chosen to express its will.
143

Bluntly, the court stated that unlike other courts addressing the issue, it does not
feel compelled to reach a result at war with common sense, particularly when doing
so would require us to alter the plain language of what Congress has written.
144

The Eighth, First, and Eleventh Circuit Courts of Appeal rely on the plain
meaning of physical force and the notion that if Congress intended a specific

131
United States v. Griffith, 455 F.3d 1339, 1340 (11th Cir. 2006).
132
Id.
133
Id.
134
Id. at 1341.
135
Id.
136
Id.
137
Id.
138
Id. at 1342.
139
Id.
140
Id.
141
Id. at 1344 (It is well settled that where Congress includes particular language in one section of
a statute but omits it in another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion. (citing Duncan v. Walker, 533
U.S. 167, 173 (2001) (internal citation, quotation marks, and alteration omitted))).
142
Id.
143
Id.
144
Id. at 1345.
38

meaning to apply, it would have done so.
145
Such analysis accurately reflects the
intentions of Congress and the ultimate goals of the law. However, other courts
disagree.
146

B. Something More than Plain Physical Force

Unlike the cases discussed above, other federal courts of appeal have taken
a different approach to interpreting physical force under the Amendment. These
courts do not utilize a simple interpretation of the plain meaning of physical force,
but look beyond the record for insight into the meaning of the ambiguous legislative
language.

1. The Tenth Circuit Doubts Clear Congressional Intent

In 2006, Daniel Hays was indicted for possession of a firearm after being
convicted of a crime of domestic violence.
147
Wyomings simple battery statute
defines battery as the unlawful touching of another in a rude, insolent, angry
manner, or the intentional causation of bodily injury to another.
148
To determine
whether the statute qualifies as the predicate offense of the Amendment, the Tenth
Circuit utilized the categorical approach.
149
The Tenth Circuit commented that the
purpose of the approach, where relevant federal statutes refer to elements in state
statutes, is to determine which part of the state statute the defendant was charged
with.
150
Then will the court know which part of the state statute to analyze on its
face.
151

However, the record did not indicate which definition of the statute of
which Hays was convicted.
152
The consequence is that both definitions within the
statute must have physical force as an element or the Amendment is
inapplicable.
153
The court held that the first prong of the Wyoming battery statute
does not contain an element of physical force, and that Hays conviction should be
dismissed:
Indeed, one can think of any number of touchings that might be
considered rude or insolent in a domestic setting but would not
rise to the level of physical force discussed above. For example,
in the midst of an argument, a wife might angrily point her finger
at her husband and he, in response, might swat it away with his
hand. This touch might very well be considered rude or insolent
in the context of a vehement verbal argument, but it does not
entail use of physical force in anything other than an exceedingly
technical and scientific way.
154

145
See United States v. Smith, 171 F.3d 617, 617 (8th Cir. 1999); United States v. Nason, 269 F.3d
10, 11 (1st Cir. 2001); U.S. v. Griffith, 455 F.3d 1339, 1340 (11th Cir. 2006).
146
See infra Section II.B.
147
United States v. Hays, 526 F.3d 674, 675 (10th Cir. 2008).
148
Id.
149
Id.
150
Id. at 676.
151
Id.
152
Id. at 678
153
Id.
154
Id. at 680.
39

The court dismissed Hayss 922(g)(9) indictment, doubting that Congress
intended statutes like the Wyoming battery statute to qualify as a predicate offense
under the Amendment.
155
The court openly recognized that physical force would
occur even in its own hypothetical, but somehow dismissed the application of the
Amendment because it would be too technical.
156
The court did not acknowledge
that it was adding its own interpretation of physical force under the Amendment
without establishing inherent ambiguity in physical force.
157

2. The Ninth Circuits Noscitur a Sociis

Robert Belless committed assault and battery in Wyoming when he
grabbed his wifes neck and chest area and pushed her up against a car in an angry
manner.
158
Six years later, he was indicted for possession of a firearm having been
convicted of a misdemeanor crime of domestic violence.
159
The Wyoming statute
under which Belless was convicted defines the crime of battery as an unlawful
touching of another in a rude, insolent, or angry manner or which intentionally,
knowingly, or recklessly causes bodily injury to another.
160
The Ninth Circuit Court
of Appeals addressed Belless appeal to dismiss the 922(g)(9) conviction, and
addressed the physical force requirement.
161

The court noted that any touching will always constitute an element of
physical force within the meaning of Newtonian physics.
162
It employed the
doctrine of noscitur a sociis, to look at the preceding section of the Amendment and
its reference to violent threatened use of a deadly weapon.
163
It then held that
Congress must have intended a similar result in 922(g)(9).
164
The court held that the
Wyoming statute does not qualify as the predicate offense because persons can be
convicted of it using mere impolite behavior.
165

C. Improper Application of Supreme Court Precedent

1. The Fourth Circuits Dismissal of a Supreme Court Disclaimer

Though the circuit split on the issue seemed to be resolved via one of two
schools of thought, a third alternative appeared.
166
In United States v. White, the
defendant filed a motion to dismiss his charges under the Amendment because he
believed that the Virginia common law definition of assault and battery for which
he was convicted does not contain an element of physical force.
167
His argument

155
Id.
156
Id. at 679.
157
Id.
158
United States v. Belless, 338 F.3d 1063, 1064 (9th Cir. 2003).
159
Id.
160
Id.
161
Id. at 1065.
162
Id.
163
Id. at 1068.
164
Id. at 1066.
165
Id.
166
Id. at 1067.
167
United States v. White, 606 F.3d 144, 145 (4th Cir. 2010).
40

was that the mere offensive touching that allows a person to be convicted under
Virginia law does not qualify as physical force per the language of the
Amendment.
168
Virginia, like half of the states in the United States, follow the
common law definition challenged in this case.
169

Virginia, and those states with similar systems, incorporate the common
law crimes and definition of assault and battery without statutory
modifications.
170
Looking to the Virginia Supreme Courts 1867 cases involving the
common law assault and battery, the court provided a definition that an assault is
any attempt or offer with force or violence to do a corporeal hurt to another, as by
striking at him in a threatening or insulting manner, or with such other
circumstances as denote at the time an intention, coupled with a present ability, of
actual violence against his person, as by pointing a weapon at him when he is within
reach of it.
171

The Fourth Circuit court distinguished between force in the legal and
scientific community, noting that it must treat the word force as having a
meaning in the legal community that differs from its meaning in the physics
community.
172
It then turned to the Supreme Courts recent decision in United
States v. Johnson, which it held dispositive of the issue before it.
173
The defendant
in Johnson was convicted of being a felon in possession of ammunition.
174
The
government sought to impose enhanced sentencing but could only do so if he had
three previous convictions of a violent felony that has as an element the use,
attempted use, or threatened use of physical force against the person of another.
175

The issue was whether a battery conviction in Florida qualified as a
violent felony.
176
A person can be convicted of battery in Florida in one of three
ways. One can [i]ntentionally caus[e] bodily harm, or intentionally strike[e] the
victim, or merely [a]ctually and intentionally touch the victim.
177
Because there
was nothing in the record about which part he was charged with, the Court had to
evaluate the third and lowest form of battery in Florida.
178

In Johnson, the Supreme Court rejected the argument that Floridas
common law definition of battery qualified as a predicate offense of a violent
felony under 924(e)(2)(B).
179
The Court required physical force under
924(e)(2)(B) to be force that is capable of causing physical pain or injury to another
person.
180
The Fourth Circuit, analyzing physical force under the Amendment in
White, held that the same type of violent, physical force under 924(e)(2)(B) is
the same kind of physical force under the Amendment even though the Supreme

168
Id.
169
Id.
170
Id. at 146.
171
Id.
172
Id. at 148.
173
Id.
174
Id. at 150.
175
Id.
176
Id.
177
Id. at 151.
178
Id.
179
Id. at 152.
180
Id.
41

Court explicitly held that its decision did not reach the definition of physical force
under 921(a)(33)(A) in relation to the Amendment.
181

2. The Sixth Circuit Follows Suit

The Sixth Circuit Court of Appeals interpreted physical force using the
same analysis.
182
James Castleman pled guilty to one count of misdemeanor
domestic assault under Tennessee Code.
183
A person is guilty of assault in
Tennessee if he intentionally, knowingly, or recklessly causes bodily injury, fear of
imminent bodily injury, or physical contact that a reasonable person would consider
extremely offensive or provocative.
184
Castlemans indictment asserted that the
basis of his indictment was the intentional or knowing causation of bodily injury to
the mother of his child.
185

Later, Castleman and his wife engaged in the buying and selling of
firearms to sell on the black market.
186
Castlemans wife would purchase firearms
under the pretense that she was the actual buyer, but would turn them over to
Castleman because his prior conviction of domestic assault prevented him from
purchasing the guns.
187
Their scheme caught the attention of the Bureau of Alcohol,
Tobacco, Firearms, & Explosives after a gun purchased under his wifes name was
recovered as part of a homicide investigation.
188
Consequently, a grand jury indicted
Castleman for possession of a firearm after having been convicted of a
misdemeanor crime of domestic violence in violation of the Amendment.
189
The
district court dismissed those charges.
190

Like the Ninth and Tenth Circuit Court of Appeals before it, the Sixth
Circuit applied the categorical approach to determine whether the Tennessee statute
qualified as a 922(g)(9) predicate offense on this appeal.
191
Though it claimed to
look to the plain language of the statute, the Court looked to other definitions to
determine the meaning of physical force:
192

The governments argument is unpersuasive. It overlooks the
nearly identical language of 921(a)(33)(A) and 18 U.S.C.
16(a) and 924(e)(2)(B)(i). Section 921(a)(33)(A)(ii) defines a
misdemeanor crime of domestic violence as a crime that has,
as an element, the use or attempted use of physical force, against
a victim with whom the defendant shares a domestic relationship.
Like 921(a)(33)(A)(ii),16(a) and 924(e)(2)(B)(i) use the

181
Id. The Supreme Court declined to respond to the Government's inquiry as to whether
physical force in 921(a)(33)(A) would have the same meaning as under 924(e)(2)(B), it
did so because [t]he issue is not before us, so we do not decide it. United States v. Johnson,
559 U.S. 133 (2010)).
182
United States v. Castleman, 10-5912, 2012 WL 4096234 (6th Cir. Sept. 19, 2012).
183
Id. at 2.
184
Id.
185
Id.
186
Id. at 3.
187
Id.
188
Id.
189
Id.
190
Id.
191
Id. at 4.
192
Id. at 5.
42

phrase physical force to define crime of violence and violent
felony, respectively.
193

Approving of the Fourth Circuits analysis in White and that courts
reliance on the Supreme Courts decision in Johnson, the Fourth Circuit concluded
Congress would have never qualified the word misdemeanor with crime of
violence if it intended for physical force under the Amendment to require
anything less than violent physical force.
194
The natural interpretation, according
to the court, requires strong or violent physical force. Because Castleman could
have been convicted for causing slight or non-serious harm, the dismissal was
affirmed on appeal.
195

Castleman and like-minded cases will soon be subject to Supreme Court
review.
196
Though courts favoring the violent form of physical force contend that
their interpretation is consistent with proper means of statutory interpretation, the
Supreme Courts decision to grant certiorari indicates otherwise. The analysis that
follows provides the Supreme Court sufficient grounds for overturning violent
interpretations of physical force through the examination of tools of statutory
construction. Some of these tools speak directly and contrary to the analysis of
violent physical force cases.

III. A DE MINIMUS ANALYSIS OF PHYSICAL FORCE

The decisions at odds over the meaning of physical force involve the
application of plain meaning, the categorical approach, and common statutory tools
of construction.
197
This Section determines the best approach for analyzing the
qualification of assault and battery statutes under the Amendment.
The analysis of the courts favoring a violent form of physical force
illustrate inherent problems with looking beyond the plain meaning of words in a
statute. Analysis couched in any other tool of statutory construction simply serves
as a means of masking the courts judicial preference of one outcome or policy over
another.
198
As legal scholars have noted, for every tool of statutory construction
used when defining ambiguous legislative language, there is often an equal maxim
parrying that interpretation.
199
As the debate around the utility of these tools wages
on, the inconsistent application of the Amendment hinders efforts at curbing
unnecessary domestic violence.
200
The Supreme Court will have to reconcile this
judicial inconsistent application of textual canons of construction when it examines
Castleman.
201

193
Id.
194
Id. at 6.
195
Id.
196
Flatow, supra note 15.
197
See supra Part II.
198
Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About
How Statutes Are to Be Construed, 3 VAND. L. REV. 395, 401-06 (1950).
199
Id.
200
LISA SCHULTZ BRESSMAN ET AL., THE REGULATORY STATE 288 (2010).
201
To examine the arguments before the court in Castleman, see Petition For a Writ of Certiorari,
at 1, United States v. Castleman, 10-5912, 2012 WL 4096234 (6th Cir. Sept. 19, 2012) (No. 12-
1371), available at http://sblog.s3.amazonaws.com/wp-content/uploads/2013/08/2012-
1371.pet_.aa_.pdf.
43

A. Textual Canons of Construction

Canons are employed to provide courts with some logical guidance in
determining the meaning of language in statutes.
202
Most of them have emerged
from the common law process by way of judicial discretion.
203
Proponents of the
tools claim that the use of such canons limits the ability of judges to legislate from
the bench.
204
Opponents claim that because judges have the choice between
competing canons their judicial discretion is only exacerbated.
205
This exacerbation
is obvious upon consideration of decisions interpreting physical force under the
Amendment.
The Eighth Circuits decision in Smith significantly depended on the use of
the plain meaning of physical force.
206
Also, the First Circuit Court in Nason
merely looked to the dictionary in helping define physical force.
207
The Eleventh
Circuit Court in Griffith also applied the plain meaning.
208
The United States
Supreme Court discussed plain meaning as early as 1917, and stated that it is
elementary that the meaning of a statute must, in the first instance, be sought in the
language in which the act is framed, and if that is plain . . . the sole function of the
courts is to enforce it according to its terms."
209
Where the meaning of the text is
plain and clear, the Court warned that there is no duty to interpret in the first
instance.
210

However, the Tenth Circuit court in Hays supported its decision that
Wyomings battery statute allowed for convictions of a misdemeanor crime of
domestic violence without an element of physical force on two grounds.
211
First, the
court believed that rude behavior should not constitute physical force, even in its
own hypothetical where a husband is swatt[ing] at his wife in an argument.
212

Second, the court, without an attempt to review legislative history, doubted that
Congress intended behavior defined as rude, insolent, or angry to fall within the
ambit of physical force for the purposes of the Amendment.
213
The Supreme
Court should reject such cursory analysis.
Straightforward application of the plain meaning of physical force would
avoid analysis like that of the court Hays, utilizing doubt and assumptions in lieu of
an unambiguous or straightforward means of interpreting the Amendment.
Furthermore, courts are obligated to look to the plain meaning of words in a statute
unless they are ambiguous.
214
Hays, and courts holding like it, do little to establish
or justify ambiguity in the meaning of physical force before applying a canon of
construction and in an attempt to legislate from the bench.
215
A showing of

202
Bressman, supra note 200 at 288.
203
Id.
204
Id.
205
Id.
206
See generally United States v. Smith, 171 F.3d 617, 617 (8th Cir. 1999).
207
See generally United States v. Nason, 269 F.3d 10, 11 (1st Cir. 2001).
208
See United States v. Griffith, 455 F.3d 1339, 1340 (11th Cir. 2006).
209
Caminetti v. United States, 242 U.S. 470, 472 (1917).
210
Id.
211
See United States v. Hays, 526 F.3d 674, 675 (10th Cir. 2008).
212
Id. at 678.
213
Id. at 680.
214
Caminetti, 242 U.S. at 472.
215
See supra Section II.B.
44

ambiguity in legislative language ought to be a strict standard courts follow on
appeal before substituting their judgment for a plain, simple, and obvious way to
read and interpret law. A courts displeasure with the plain meaning of a phrase is
not sufficient to justify an addition to the meaning of the law.
The Ninth Circuits analysis of the Amendment and question in Hays is
distinct from Belles.
216
The court acknowledged the plain meaning of the words
physical force, but ignored it instead to apply the noscitur a sociis canon of
construction.
217
Because the previous section of the Amendment references violence
and the use of deadly weapons, the court imputed that context into the meaning of
physical force.
218
The courts application of noscitur a sociis can be parried
through the use of competing statutory maximsillustrating the arbitrariness
inherent in their application.
For example, the in pari materia canon analyzes separate statues, though
passed at different times, to analyze the meaning of certain language.
219
In other
words, when language in a statute is ambiguous, its meaning may be determined in
light of other statutes on the same subject matter.
220
Courts must first determine if
the other statute addresses the same subject matter.
221
Also, the expressio unius est
exclusio alterius
222
canon dictates that items or definitions not explicitly mentioned
are thus not covered by the statute.
223
However, often times a list in a statute is
illustrative only and not exclusionary.
224
This is usually indicated by language like
includes or such as.
225
This canon helps a court infer that the omission of a term
in one section of a statute was intentionally included in another part of the statute.
226

These canons equally respond to the use of noscitur a sociis by courts supporting
the violent form of physical force by showing that the Amendment specifically
excludes the violent language when describing physical force. As a consequence,
physical force according to the application of these two canons should be read
without reference to violent language.
As discussed above, the holdings in White and Castleman only exacerbate
the departure from the plain meaning of the Amendment.
227
The White court relied
on the Supreme Courts decision in United States v. Johnson to come to a final
decision about what physical force under the Amendment meant even though the
Supreme Court explicitly declined to address the meaning of physical force under
the Amendment.
228

216
Compare United States v. Hays, 526 F.3d 674 (10th Cir. 2008), with United States v. Belless,
338 F.3d 1063 (9th Cir. 2003).
217
Hays, 526 F.3d at 676.
218
Id.
219
See William J. Vietti, Statutory Interpretation-Teacher! Teacher! The Court Is Using
Extracurricular Interpretations!; Luhm v. Board of Trustees of Hot Springs County School
District No. 1, 206 P.3d 1290 (Wyo. 2009), 11 WYO. L. REV. 591, 591 (2011).
220
Id.
221
Id. at 592.
222
Latin for the express mention of one thing excludes all others.
223
See Robert Fugate, Defining Terms of Art in Legal Writing, 72 TEX. J. BUS. L. 748, 749 (2009).
224
Bressman, supra note 200 at 290.
225
Id.
226
Fugate, supra note 223 at 750.
227
See United States v. White, 606 F.3d 144, 145 (4th Cir. 2010); United States v. Castleman, 10-
5912, 2012 WL 4096234 (6th Cir. Sept. 19, 2012).
228
White, 606 F.3d at 145.
45

The Supreme Courts decision in Johnson, interpreting a different, though
similar statute to the Amendment, held that physical force required the existence
of violent felonies primarily because of the structure of the sentence.
229
The
Amendment does not reference violent felonies especially not the type that
924(e)(2)(B) was designed to capture.
230
Judicial reference to the Armed Criminal
Career Acts language seems misguided.
231
The Fourth Circuit adopted this analysis
too.
232

The problem with this analysis is obvious to others. The courts in White
and Castleman misconstrue the Supreme Courts decision in Johnson. Judge
McKeague of the Sixth Circuit argues that the majority pretends that Congress
acted with full knowledge of the Johnson felony exception instead of with common
law understanding when writing 921(a)(33)(A), and that considering the
chronology of events, this cannot be the case.
233
The misinterpretation of
Johnson, according to Judge McKeague, was that the felony standard should not
control the misdemeanor.
234
Even under the Johnson standard, Judge McKeague
argues, the Tennessee statute would have satisfied the physical force requirement
of the Amendment.
235

The courts that rest their holdings on the plain meaning of the statutes, like
the First Circuit Court of Appeals in Nason, choose the proper course. Reliance on
the plain meaning of language is valid so long as the interpretation is not absurd.
236

The Nason court analyzed the section proceeding the Amendment the same way the
Ninth Circuit Court did in Hays, yet both courts came to entirely different
conclusions.
237
One held that the preceding language governs the meaning of
physical force under the Amendment and the other held that it does not.
238

Although the First Circuit addressed the issue through plain meaning alone, this
conflict is telling of the effectiveness of canons that go beyond the plain meaning of
text.
239

Regardless, both the denotative and connotative meaning of physical
force is enough to support the holdings of the First, Eighth, and Eleventh Circuits
interpretation of the term from a policy and judicial perspective. The reality of
domestic abuse and violence supports such an outcome.
240
A plain meaning

229
Johnson v. United States, 559 U.S. 133, 140 (2010).
230
See 18 U.S.C. 922(g)(9) (1996).
231
Daija M. Page, Forcing the Issue: An Examination of Johnson v. United States, 65 U. MIAMI L.
REV. 1191 (In that case, like in his opinion in Johnson, Justice Scalia cited the second edition of
Webster's New International Dictionary as his main support and treated it as conclusive. Also
similar to his opinion in Johnson, Justice Scalia's dissent in Chisom relies on the second edition of
Webster's Dictionary, rather than the more up-to-date third edition which was published in 1961.
He also ignores other definitions that do not support the side that he is advocating).
232
White, 606 F.3d 144 at 152.
233
United States v. Castleman, 10-5912, 2012 WL 4096234 (6th Cir. Sept. 19, 2012) (McKeague,
J., Dissenting).
234
Id. at 19.
235
Id.
236
TOBIAS A. DORSEY, STATUTORY CONSTRUCTION AND INTERPRETATION: GENERAL PRINCIPLES
AND RECENT TRENDS 76 (2010).
237
Compare United States v. Nason, 269 F.3d 10 (1st Cir. 2001), with United States v. Hays, 526
F.3d 674, (10th Cir. 2008).
238
Id.
239
See Nason, 269 F.3d at 10.
240
See supra Section I.B.
46

application of physical force avoids the problem of deciding, at least in these
cases, between the use of categorical or modified categorical approaches to
predicate offenses and the simple determination of statutory definitions like the
court in Smith.
241

Furthermore, a plain meaning interpretation of physical force captures
the aims of the statute.
242
In those cases where a states battery or assault statutes
did not qualify under the Amendment, the defendant did actually use physical force
when committing domestic abuse.
243
The defendant in Belles grabbed his wife by
the chest and neck and pushed her against a car.
244
Undoubtedly, the Amendment
intends on preventing such conduct.
245
A step of analysis for courts involves not
looking to the facts of the underlying case, but only to the language of the statute.
246

However, even if there are state statutes that can convict someone of assault or
battery against a domestic partner without violent physical force, the Amendment
should still apply. Mere judicial disposition of this result is not sufficient to
undermine the goals of the Amendment.
Even the dissent in Hays commented on the effects of ignoring the plain
meaning of physical force.
247
Judge Elbs noted that while the majority appears to
agree that the foregoing is correct from a scientific perspective, it nevertheless
believes that something more is required from a legal perspective.
248
Those
courts undermining the plain meaning of physical force add an unnecessary level
of complexity to good faith efforts at combating domestic violence.

B. Application of the Legislative History

Some courts have simply re-written the meaning of physical force under
the Amendment. The court in Griffith pointed out the error of the Belless court
when it inserted into the statutory definition of physical force a word that was not
there to begin with, violent use of force against the body.
249
Other courts have
reached the same conclusion.
250
Scholars, however, that contend this interpretation
is appropriate, and that the legislative history supports such application and
interpretation:
Notably, however, there is some evidence that the term was
changed out of concern that the original term was too broad and
may have been interpreted to include any act such as cutting up a
credit card with a pair of scissors. This change arguably supports
the Belless Court's reasoning that Congress did not intend the
statute to cover force that is de minimus because Congress
rejected the original, broadly-worded version of the

241
United States v. Smith, 171 F.3d 617 (8th Cir. 1999).
242
See supra Section I.A.
243
See supra Part II.
244
United States v. Belless, 338 F.3d 1063, 1065 (9th Cir. 2003).
245
See supra Part I.
246
247
United States v. Hays, 526 F.3d 674 (10th Cir. 2008) (Elbs, J., Dissenting).
248
Id. at 676. (Judge Elbs also commented that the state statute is by no means de minimis,
but instead, is the type that may readily lead to an escalation of violence).
249
United States v. Griffith, 455 F.3d 1339, 1349 (11th Cir. 2006) (emphasis added).
250
47

amendment.
251

However, the change in language does not necessarily mean that Congresses
intended a narrow version of physical force. Instead, the change in language
reflects a broadened aim of the statute. Addressing the de minimus and credit card
cutting concern, Senator Lautenberg noted that such a concern is farfetched and
stated that the new language covered crimes that are more precise and probably
broader than the previously drafted crime of violence definition.
252

Another argument supporting the notion the violent form of physical
force is that other sections of the law refer to violent physical force, governing
the definition of physical force under the Amendment.
253
Belless and other
proponents of the violent form of physical force contend that because the phrase
threatened use of a deadly weapon involved a gravely serious threat to apply
physical force, the physical force referred to in the Amendment must not be de
minimus.
254

This broadening of language does not support such a contention. If
Congress had not added the threatened use of a weapon language, courts holding
in favor of violent physical force may have reached different conclusions because
they would not be able to base their decision by looking at language surrounding the
Amendment. Congress did broaden the original statute to include offenses
involving the threatened use of a weapon, but it did not limit the Amendments
definition of physical force.
255
Additionally, Congress could easily have narrowed
the physical force language to require violent use of physical force if it so
intended.
Congress made the determination that domestic-violence abusers are
dangerous individuals who should not possess firearms because of their volatility
and risk.
256
The Amendment and its goals should not depend on whether someone
choked their domestic partner, instead of touching them rudely or offensively.
Congress was not blind to the progressively violent nature of domestic abuse.
257
If
an individual is capable of being found guilty under different state statutory
definitions of physical domestic abuse, their actions should qualify as a predicate
offense for purposes of the Amendment.

251
Babak Lalezari, Domestic Violence: Enough Is Enough, Any Force Is Enough, 1 PHOENIX L.
REV. 295, 312 (2008).
252
42 CONG. REC. S11872, S11877 (daily ed. Sept. 30, 1996) (statement of Sen. Lautenberg:
Mr. President, the final agreement does include some minor changes to the Senate-passed
version that actually strengthen the ban slightly. Let me review some of them now. First, the
revised language includes a new definition of the crimes for which the gun ban will be
imposed. Under the original version, these were defined as crimes of violence against certain
individuals, essentially family members. Some argued that the term crime of violence was too
broad, and could be interpreted to include an act such as cutting up a credit card with a pair
of scissors. Although this concern seemed far-fetched to me, I did agree to a new definition of
covered crimes that is more precise, and probably broader.)
253
254
See United States v. Belless, 338 F.3d 1063 (9th Cir. 2003).
255
See 18 U.S.C. 922(g)(9) (1996).
256
See 142 CONG. REC. S11872, S11877 (Sept. 30, 1996) (statement of Sen. Lautenberg) (In
my view, anyone who attempts or threatens violence against a loved one has demonstrated
that he or she poses an unacceptable risk, and should be prohibited from possessing
firearms).
257
See supra Part I.
48

C. Domestic Violence and Federal Investigations

Beyond the legal debate over judicial use of tools of statutory construction,
courts must not forget the context these cases and those like it are placed in
situations where domestic partners or significant others are in a daily risk of
violenceeven if that violence is slow to start.
258
Because domestic violence is
progressive in nature, the removal of firearms from the equation only strengthens
the effort at curbing domestic violence.
259
Furthermore, if domestic violence
misdemeanants know that there are jurisdictions where they can be convicted of
such domestic violence without being subject to the penalties of the Amendment,
the deterrent against domestic violence is much weaker.
260
So long as a domestic
abuser can steady their abuse at a level not greater than rude or offensive behavior,
or even swatting in some jurisdictions, they can still keep their firearms.
261
The
law should not put firearms in the hands of those willing to swat at their domestic
partners.
Another consequence of the prevalence of the violent form of physical
force is the negative effects on federal investigation and sentencing. The facts in
the cases above show that defendants that pleaded down from some more severe
offense that would have undoubtedly qualified as physical force within the
meaning of the Amendment.
262
In an effort to ease caseloads and effectively
administer justice, a federal prosecutor may now not attempt to pursue charges
under the Amendment as many of these cases since courts are not uniform in their
interpretation of physical force under the Amendment.
263

CONCLUSION

Requiring a showing of violent physical injury in a battery or assault
statute in order to allow the application of the Amendment negates the purpose of
the law in the first instance. In cases like that, the harm is already done. Someone
capable of willing even the slightest form of battery or assault on a domestic partner
has forfeited their right to a gun or firearm. Such rights are not absolute.
264

258
See supra Part I.
259
260
See generally Lizabeth Hale & Ben Whitehouse, Firearms Laws and Gun Permits in Tennessee,
Tennessee Attorney Generals Office (Sept. 30, 2012),
http://www.tndagc.com/oc/handouts/criminal/Hand%20Gun%20Permits/Firearms%20Laws%20an
d%20Carry%20Permits.pdf.
261
262
263
See Declan McCullagh, Court: Criminal Record May Not Prevent Gun Ownership, CBS NEWS
(Nov. 19, 2009), http://www.cbsnews.com/8301-504383_162-5711496-504383.html; Criminal
Justice Manual, Restrictions on the Possession of Firearms by Individuals Convicted of a
Misdemeanor Crime of Domestic Violence, DEPARTMENT OF JUSTICE. The Manual provides that
Even if a determination is made that prosecution is not warranted, steps should be taken to assure
that the firearm is removed from the possession of the prohibited individual. Depending upon the
situation, this might be done by having a local/state/federal law enforcement officer notify the
individual of the application of the new law and offer to take temporary custody of the firearm.
264
J.F., The Right to Bear Arms is Not Absolute, The Economist (Sept. 18, 2013),
http://www.economist.com/blogs/democracyinamerica/2013/09/guns-and-coffee; Joseph J. Ellis,
49

The only consistent way to enforce the purpose of the law is to apply the
plain meaning of the words physical force, no matter how scientific the word may
appear to be to learned judges.
265
Rules of statutory construction require that the
words interpreted be ambiguous or absurd in order to let a court define their
meaning in another way, and the courts that require a violent form of physical
force miss the forest for the trees.
266
Nor do they properly contend that physical
force is absurd or ambiguous.
267
All of these cases involved acts of violence that
qualify as domestic violence.
268
Some are more heinous than others, but worth
charging nonetheless because it is never too early to prevent the escalation of
domestic violence in a relationship.
269
Nonetheless, there are still jurisdictions where
such domestic violence misdemeanants have access to a firearm.
270

The legislative history of the Amendment has made it clear that even the
lowest form of physical force in state statutes should be enough to qualify as a
predicate offense within the meaning of the Amendment.
271
It seems odd that
Congress would seek to only deter violent or egregious forms of domestic violence,
and not other acts that nonetheless qualify as domestic violence, even if they are not
as violent as some courts would prefer them to be.
272

Further, the domestic violence in Zina Haughtons case was progressive.
Forms of assault and battery between Zina and her husband, which were not as
violent as some appellate decisions have required for the Amendment to apply
between the two.
273
What those decisions miss is the nature of those relationships,
abusers, and victims; gutting how the Amendment intends to prevent any chance for
escalation in cases of domestic abuse altogether. The Supreme Court must correct
this error when it decides Castleman by recognizing the impediment the violent
form of physical force serves as to domestic partners, federal officials, and
domestic violence awareness advocates across the country.

Theres No Unlimited right to Bear Arms, L.A. TIMES (Sept. 08, 2013),
http://articles.latimes.com/2013/sep/08/opinion/la-oe-ellis-gun-control-nullification-20130908.
265
See supra Part III.
266
Id.
267
268
Id.
269
Id.
270
See supra Part III.
271
See supra Section I.A.
272
273
Black, supra note 1.
50

CAN A CORPORATION EXERCISE RELIGION?
A SOLUTION TO THE HHS CONTRACEPTION MANDATE CONTROVERSY

Chris Blain

INTRODUCTION

The question of whether a corporation can exercise religion initially seems
absurd. After all, corporations do not pray nor join worshippers in the pews on
Sunday. Despite this, the notion that corporations are people with certain First
Amendment rights has become increasingly common in our law and political
discourse. For example, while on the campaign trail in 2011, presidential candidate
Mitt Romney reminded a protestor that [c]orporations are people, my friend.
1

Furthermore, in Citizens United v. Federal Election Commission, the United States
Supreme Court recognized that First Amendment protection extends to
corporations.
2
The Court stated that despite a corporations unique qualities, such
as limited liability and perpetual life, the state cannot exact as the price of those
special advantages the forfeiture of First Amendment rights.
3
While the Courts
analysis in Citizens United focused primarily on the notion that political speech
cannot be suppressed under the First Amendment based on the speakers identity,
this begs the question of whether corporations enjoy additional First Amendment
rightssuch as the right to free exercise of religion.
4

The provision of the Patient Protection and Affordable Care Act (ACA)
mandating that employers provide coverage of contraception and abortifacients to
employees, known as the HHS mandate, has provided an ideal vehicle to consider
the extension of additional First Amendment rights to corporations.
5
Of the over
ninety lawsuits challenging the HHS mandate, forty-seven of them have been
initiated by for-profit business entities and their owners, alleging violations of the
Religious Freedom Restoration Act (RFRA).
6
Since the RFRA prevents the

1
Philip Rucker, Mitt Romney says corporations are people at Iowa State Fair, WASHINGTON
POST (Aug. 11, 2011), http://www.washingtonpost.com/politics/mitt-romney-says-corporations-
are-people/2011/08/11/gIQABwZ38I_story.html.
2
Citizens United v. Fed. Election Commn, 130 S. Ct. 876, 899 (2010).
3
Id. at 905 (quoting Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 680 (1990) (Scalia,
J., dissenting)).
4
Id.
5
The ACA requires that non-grandfathered group or individual health plans and health insurance
issuers cover without impos[ing] any cost sharing requirements . . . such additional preventive
care and screenings [for women] . . . as provided for in comprehensive guidelines supported by the
Health Resources and Services Administration. Tyndale House Publishers, Inc. v. Sebelius, 904
F.Supp.2d 106, 110 (D.D.C. 2012) (quoting 42 U.S.C. 300gg13(a)(4) (Supp. 2010)). Under the
regulations promulgated by the Department of Health and Human Services, all health insurance
plans and policies (except those grandfathered or otherwise exempt) are required to comply with
the contraceptive coverage mandate starting with the plan years beginning on or after August 1,
2012. Id.
6
HHS Mandate Information Central, THE BECKET FUND FOR RELIGIOUS LIBERTY,
http://www.becketfund.org/hhsinformationcentral/ (last visited Feb. 20, 2012); Religious Freedom
Restoration Act (RFRA) of 1993, 42 U.S.C. 2000bb to 2000bb-4 (2006). The RFRA forbids the
government from substantially burden[ing] a person's exercise of religion even if the burden
results from a rule of general applicability unless the government can demonstrate[] that
application of the burden to the person (1) is in furtherance of a compelling governmental interest;
51

government from substantially burden[ing] a person's exercise of religion, the
threshold issues are whether a business entity can exercise religion, and whether the
HHS mandate constitutes a substantial burden on such an exercise.
7
Currently,
thirty-three of the forty-seven for-profit plaintiffs have been granted injunctive relief
enjoining enforcement of the HHS mandate.
8
In one such case, Newland v. Sebelius,
United States District Court Judge Kane granted the plaintiffs Motion for a
Preliminary Injunction against the HHS mandate holding that the plaintiffsthe
owners of the corporation at issue and the corporate entity itselfhad a substantial
likelihood of success on the merits of their claim that the HHS mandate violated the
RFRA.
9
In so holding, Judge Kane remarked:
These arguments pose difficult questions of first impression. Can
a corporation exercise religion? Should a closely-held
subchapter-s corporation owned and operated by a small group of
individuals professing adherence to uniform religious beliefs be
treated differently than a publicly held corporation owned and
operated by a group of stakeholders with diverse religious beliefs?
Is it possible to pierce the veil and disregard the corporate form
in this context? What is the significance of the pass-through
taxation applicable to subchapter-s corporations as it pertains to
this analysis? These questions merit more deliberate
investigation.
10

While these are difficult questions of first impression, there are germane
differences between business entities such that some businesses can exercise
religion while others cannot.
11
Public corporations, for example, cannot exercise
religion because they are not owned by individuals professing adherence to a
uniform and sincerely held religious belief.
12
Moreover, business entities with large
numbers of employees cannot exercise religion because the RFRA cannot be used to
force religious practice on non-adherents.
13
However, if a business entity (1) is
owned by individuals professing adherence to a sincerely held religious belief; (2)
primarily employs individuals with the same religious belief; and (3) holds itself out
to the public as adhering to that religious belief, there is no principled reason to
apply the Free Speech Clause of the First Amendment to the entity at the exclusion
of the Free Exercise Clause.
14
Thus, business entities that satisfy the three prongs
can exercise religion. Finally, the HHS mandate is likely a substantial burden on
such an exercise of religion given the steep penalties imposed on objecting
businesses.
15

Part I discusses the history of the ACA and the HHS mandate. Part II
discusses the RFRA, its relevance to the present litigation, and the for-profit

and (2) is the least restrictive means of furthering that compelling governmental interest. 42
U.S.C. 2000bb-1(a), (b) (2006).
7
42 U.S.C. 2000bb-1(a), (b) (2006).
8
HHS Mandate Information Central, supra note 6.
9
Newland v. Sebelius, 881 F.Supp.2d 1287, 1299 (D. Colo. 2012).
10
Id.
11
See infra Part III.
12
See infra Subsection III.C.2.
13
14
See infra Part III.
15
52

business challenges to the ACA. While a majority of the for-profit business
challenges have alleged violations of the RFRA, the Free Exercise Clause, the
Establishment Clause, the Free Speech Clause, and the Administrative Procedure
Act (APA),
16
Part II focuses on the RFRA challenges to the HHS mandate because
the RFRA is the primary claim the courts have addressed in determining whether to
grant an injunction enjoining enforcement of the HHS mandate.
17
Finally, Part III
analyzes whether a business entity can exercise religion, whether the HHS mandate
is a substantial burden on such an exercise of religion, and proposes factors for the
courts to consider when determining whether a specific business entity can exercise
religion. Part III also addresses various standing arguments some courts have
adopted, in lieu of considering whether a business entity can exercise religion, in
order to grant injunctive relief against the HHS mandate.

I. HISTORY OF THE ACA & HHS MANDATE

A brief discussion of the history of the ACA, the HHS mandate, and the
Obama Administrations subsequent compromises is necessary for understanding
and placing in context the lawsuits filed by for-profit business entities challenging
the HHS mandate.

A. Affordable Care Act

President Obama signed the ACA
18
into law on March 23, 2010 after a
contentious political debate.
19
The ACAs purpose was to increase the number of

16
See, e.g., HHS Mandate Information Central, supra note 6; Newland v. Sebelius, 881 F.Supp.2d
1287 (D. Colo. 2012) (alleging violations of RFRA, Free Exercise Clause, Establishment Clause,
Free Speech Clause, Due Process Clause of the Fifth Amendment, and the Administrative
Procedure Act); OBrien v. U.S. Dept of Health & Human Servs., 894 F.Supp.2d 1149 (E.D. Mo.
2012) (alleging violations of RFRA, Free Exercise Clause, Free Speech Clause, and Administrative
Procedure Act); Legatus v. Sebelius, 901 F.Supp.2d 980 (E.D. Mich. 2012) (alleging violations of
the Free Exercise Clause, Free Speech Clause, Establishment Clause, RFRA, and the
Administrative Procedure Act); Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278 (2012)
(alleging violations of RFRA, Free Exercise Clause, Establishment Clause, Due Process Clause,
Equal Protection Clause, Free Speech Clause, and Administrative Procedure Act); Korte v.
Sebelius, 528 Fed.Appx. 583 (7th Cir. 2012) (alleging violations of RFRA, Free Exercise Clause,
Establishment Clause, Free Speech Clause, and the Administrative Procedure Act); Autocam Corp.
v. Sebelius, No. 1:12CV1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012) (alleging
violations of Free Exercise Clause, Establishment Clause, Free Speech Clause, RFRA, and the
Administrative Procedure Act).
17
See infra note 59. Note also that the RFRA applies to the ACA and provides adequate grounds
for injunctive relief. Edward Whelan, The HHS Contraception Mandate vs. The Religious Freedom
Restoration Act, 87 NOTRE DAME L. REV. 2179, 2181 (2012) (noting that there is nothing in [the]
PPACA that explicitly overrides RFRA); Newland, 881 F.Supp.2d at 1295 (noting that
Plaintiffs RFRA challenge provides adequate grounds for the requested injunctive relief). See
also Jessica Donoghue, Note, PeopleV.US v. Obama: An Analysis of Religious Challenges to the
Patient Protection and Affordable Care Act, 12 RUTGERS J. L. & RELIGION 202, 211-12 (2010)
(arguing that the PPACA does not constitute a First Amendment violation because the PPACA is
a secularly valid law with a main purpose that is wholly unrelated to interference with religious
beliefs and any infringement is merely the incidental effort of a generally applicable and
otherwise valid provision) (quoting Empt Div. v. Smith, 494 U.S. 872, 878 (1990)).
18
Patient Protection & Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010).
53

Americans covered by health insurance and to decrease the total cost of health
care.
20
The ACA aims to achieve this purpose through a variety of provisions, most
important of which is the individual mandate.
21
The individual mandate requires
most Americans to maintain minimum essential health insurance coverage,
22
and,
beginning in 2014, those Americans who fail to do so will be required to make a
shared responsibility payment.
23

The individual mandate does not apply to some individuals, such as
undocumented aliens, prisoners, and exempted religious employers.
24
Most
Americans will receive the required coverage through their employer or from a
government program, such as Medicaid.
25
The ACA increases the number of
individuals the states must cover under Medicaid.
26
Those individuals who are not
exempt and do not receive insurance from a third party must purchase health
insurance from a private company.
27
Finally, those individuals who fail to comply
with the individual mandate must make a shared responsibility payment, which
the ACA describes as a penalty, to the Internal Revenue Service on the
individuals tax returns.
28
The penalty is calculated as a percentage of household
income, subject to a floor based on a specified dollar amount and a ceiling based on
the average annual premium the individual would have to pay for qualifying private
health insurance.
29
Some individuals, however, are subject to the mandate yet
exempt from the penalty, such as members of Indian tribes and those individuals
with incomes below a certain threshold.
30

Upon passage of the ACA, numerous Attorneys General filed lawsuits
against the federal government challenging the constitutionality of the ACA
particularly the constitutionality of the individual mandate.
31
Indeed, on the day
President Obama signed the ACA into law, Florida and twelve other states filed a
complaint in the Federal District Court for the Northern District of Florida, arguing

19
Donoghue, supra note 17, at 203. The ACA was subsequently modified by the Health Care and
Education Reconciliation Act, which was signed on March 30, 2010. Id. at 205; Health Care and
Education Reconciliation Act of 2010, H.R. 4872, 111th Cong. (2d Sess. 2010). See generally
LANDMARK: THE INSIDE STORY OF AMERICAS NEW HEALTH-CARE LAW AND WHAT IT MEANS
FOR US ALL 1 (2010) (providing a history of health care reform in America and the legislative
history of the ACA).
20
Natl Fedn of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2580 (2012).
21
Id.
22
26 U.S.C. 5000A(f) (2010). Minimum essential health insurance coverage means coverage
under government sponsored programs, such as Medicare or Medicaid, employer-sponsored plans,
plans in the individual market or grandfathered health plans. Id.
23
Natl Fedn of Indep. Bus., 132 S. Ct. at 2580 (That payment, which the Act describes as a
penalty, is calculated as a percentage of household income, subject to a floor based on a specified
dollar amount and a ceiling based on the average annual premium the individual would have to pay
for qualifying private health insurance.).
24
Id. See infra notes 43-44 and accompanying text.
25
Natl Fedn of Indep. Bus., 132 S. Ct. at 2580.
26
Id. at 2581-82. The ACA requires states to provide Medicaid coverage to adults with incomes up
to 133 percent of the federal poverty level and increases federal funding to cover the states costs
in expanding Medicaid coverage. Id.
27
Id. at 2580.
28
Id.
29
Id.
30
Id.
31
See Karen Pierog, States Launch Lawsuits Against Health Care Plan, REUTERS, Mar. 22, 2010,
http://www.reuters.com/article/2010/03/22/us-usa-healthcare-states-idUSTRE62L3B820100322.
54

that the individual mandate exceeded Congresss powers under Article I of the
Constitution.
32
The Supreme Court upheld the constitutionality of the individual
mandate, albeit not under the Commerce Clause as anticipated.
33
Instead, the Court
held that the individual mandate was constitutional under the Taxing and Spending
Clause because the mandate can reasonably be read as a tax.
34

B. HHS Mandate & Obama Administration Compromises

In August 2011, with the constitutionality of the ACA settled, the
Department of Health and Human Services (HHS) announced an interim final rule,
pursuant to the ACA, that required most health insurance plans to cover preventive
services for women including recommended contraceptive services without
charging a co-pay, co-insurance or a deductible.
35
The Department of HHS
developed its list of recommended contraceptive services by adopting the Institute
of Medicines recommendation that health insurance plans cover the full range of
[FDA]-approved contraceptive methods.
36
Consequently, most health insurance
plans must provide all FDA-approved forms of contraception.
37
FDA-approved
forms of contraception include The Pill, Plan B, Ella, and sterilization
procedures.
38
There is scientific evidence that these and other birth control methods
have health benefits such as reducing the risk of certain types of cancer and

32
Natl Fedn of Indep. Bus., 132 S. Ct. at 2580. Florida and the twelve states that filed the original
complaint were subsequently joined by thirteen more states, several individuals, and the National
Federation of Independent Business. Id. The twenty-six states are Alabama, Alaska, Arizona,
Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan,
Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota,
Texas, Utah, Washington, Wisconsin, and Wyoming. Florida ex rel. Bondi v. U.S. Dept of Health
& Human Servs., 780 F.Supp.2d 1256, 1263 n.1 (N.D. Fla. 2011).
33
Natl Fedn of Indep. Bus., 132 S. Ct. at 2601.
34
Id. The Court reasoned that the individual mandate could be read as a tax because it leaves an
individual with a lawful choice to do or not to do a certain act, so long as he is willing to pay a tax
levied on that choice. Id. at 2600. The Court also held that the Anti-Injunction Act did not bar pre-
enforcement suit, that the individual mandate exceeded Congress power under the Commerce
Clause, that the statutory provision giving the HHS Secretary the authority to penalize states that
chose not to participate in the Acts expansion of Medicaid exceeded Congress power under the
Spending Clause, and that the penalization provision was severable. Id. at 2584, 2591, 2607-08.
See also Samuel T. Grover, Religious Exemptions to the PPACAs Health Insurance Mandate, 37
AM. J.L. & MED. 624, 635-36 (2011) (noting that if the mandate is upheld as a tax, then the
mandate will likely fall within Congress power to apply that tax equally to all citizens regardless
of religious objection, thus any challenges to the mandate might receive rational basis review by
the courts instead of RFRAs strict scrutiny analysis).
35
See Press Release, Kathleen Sebelius, Sec'y, U.S. Dep't of Health & Human Servs. (Jan. 20,
2012) [hereinafter Sebelius Press Release], available at
http://www.hhs.gov/news/press/2012pres/01/20120120a.html.
36
Tyndale House Publishers, Inc. v. Sebelius, 904 F.Supp.2d 106, 110 (D.D.C. 2012) (quoting
Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 20-22, 109-10
(2011)).
37
See Sebelius Press Release, supra note 35.
38
BIRTH CONTROL GUIDE, U.S. FOOD AND DRUG ADMINISTRATION: OFFICE OF WOMENS
HEALTH,
http://www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/FreePublications/UCM356
451.pdf (updated July 2013).
55

protecting against osteoporosis.
39
Beginning on August 1, 2012, most health care
plans, including for-profit business employer-provided plans, were required to begin
covering these forms of contraception.
40
If employers fail to provide all FDA-
approved forms of contraception in their health insurance plans, they are penalized
roughly $2,000 per employee.
41

There are, however, several exemptions and safe-harbor provisions to the
HHS mandate.
42
These exemptions excuse certain religious employers from
providing the mandated contraceptive coverage in their group health care plans.
43

Religious employers are exempt from being required to cover contraception in
their health care plans if they meet the following mandatory criteria:
(1) The inculcation of religious values is the purpose of the
organization; (2) The organization primarily employs persons who
share the religious tenets of the organization; (3) The organization
serves primarily persons who share the religious tenets of the
organization; (4) The organization is a nonprofit organization as
described in [provisions of the Internal Revenue Code referring to
churches, associations of churches, and exclusively religious
activities of religious orders].
44

Additionally, grandfathered health care plans are exempt from the HHS
contraception mandate.
45
Grandfathered health care plans are those that existed as
of March 23, 2010, the day the ACA was enacted, have continuously covered at
least one person, and have not since undergone any of the changes outlined in 45
C.F.R. 147.140(g)(2).
46
Finally, employers with fewer than fifty employees are
not required to provide any health insurance; however, if such an employer chooses
to provide health insurance to its employees, then the insurance plan must cover
contraceptives, assuming the employer does not fall within an exemption.
47

39
Sebelius Press Release, supra note 35; Leslie Berger, Weighing the Health Benefits of Birth
Control, N.Y. TIMES (Aug. 1, 2008), http://www.nytimes.com/ref/health/healthguide/esn-
contraception-ess.html. There is also scientific evidence that birth control can increase the risk of
certain other types of cancer. BIRTH CONTROL, MAYO CLINIC
http://www.mayoclinic.com/health/birth-control-pill/WO00098 (last visited Feb. 11, 2013).
40
41
See Whelan, supra note 17, at 2184 ([F]or example, Belmont Abbey College . . . which has 200
full-time employees, is facing an annual base penalty of $340,000. Colorado Christian University .
. . has 280 full-time employees and is facing an annual base penalty of $500,000.); see also
Penalties for Employers Not Offering Affordable Coverage Under the Affordable Care Act
Beginning in 2014, THE HENRY J. KAISER FAMILY FOUNDATION, http://healthreform.kff.org/the-
basics/employer-penalty-flowchart.aspx (last visited Feb. 11, 2013); Hinda Chaikind & Chris L.
Peterson, Summary of Potential Employer Penalties Under the Patient Protection and Affordable
Care Act (PPACA), CONGRESSIONAL RESEARCH SERVICE (2010), available at
http://www.shrm.org/hrdisciplines/benefits/Documents/EmployerPenalties.pdf; 29 U.S.C.A.
1132(a) (West 2010); 26 U.S.C.A. 4980D(a), (b) (West 2010); 26 U.S.C.A. 4980H (West
2010).
42
See infra notes 43-47 and accompanying text.
43
OBrien v. U.S. Dept of Health & Human Servs., 894 F.Supp.2d 1149, 1155 (E.D. Mo. 2012);
see also Grover, supra note 34 (discussing religious exemptions from the ACAs mandate).
44
OBrien, 894 F.Supp.2d at 1155 (emphasis added); 45 C.F.R. 147.130(a)(1)(iv)(B).
45
OBrien, 894 F.Supp.2d at 1155.
46
Tyndale House Publishers, Inc. v. Sebelius, 904 F.Supp.2d 106, 110 n.3 (D.D.C. 2012); see also
45 C.F.R. 147.140(g)(2) (2010).
47
OBrien, 894 F.Supp.2d at 1155; 26 U.S.C.A. 4980H (West 2010).
56

Many religious organizations, particularly the Catholic Church, reacted
with much consternation to the narrowness of the exemptions.
48
Indeed, many
Catholic charities, relief services, hospitals, schools, food banks, homeless shelters,
and much less Catholic business owners who strive to conduct their businesses in
accordance with their religious beliefs do not qualify for these exemptions from the
HHS mandate.
49
In response, Secretary Sebelius of the Department of HHS
announced on January 20, 2012 that nonprofit employers who currently do not
provide contraceptive coverage in their insurance plans because of religious beliefs
will be provided an additional year, until August 1, 2013, to comply with the new
law.
50
This has been deemed the temporary enforcement safe-harbor provision.
51

In addition to the safe-harbor provision, the Obama Administration
announced on February 10, 2012 that religious organizations themselves would not
have to provide or subsidize the cost of contraception; instead, the insurance
companies would offer contraceptive coverage directly to women.
52
The purpose of
this compromise was to ensure that women who work at religious institutions would
still have access to free contraceptives, while not requiring the religious institutions
themselves to pay for contraceptive services.
53
Still, religious employers remained
concerned that they would be the ones who would end up paying for the cost of this
coverage in the form of higher premiums.
54
Additionally, many religious
organizations and for-profit businesses have self-insured plans where the religious
organization and business entity effectively are the insurance company, meaning
that this announcement would not alter their payment scheme.
55

Despite these compromises by the Obama Administration, for-profit
business entities must still provide contraceptive coverage to their employees
because only nonprofit organizations qualify for the religious employer
exemption from the HHS mandateassuming such for-profit business entities have
over fifty employees or choose to provide health insurance to their employees

48
See Nancy Frazier OBrien, HHS delays, but does not change, rule on contraceptive coverage,
CATHOLIC NEWS SERVICE (Jan. 20, 2012),
http://www.catholicnews.com/data/stories/cns/1200263.htm (noting that the ministry of Jesus
Christ himself would not be considered a religious entity).
49
See Whelan, supra note 17, at 2180; see also Huseina Sulaimanee, Protecting the Right to
Choose: Regulating Conscience Clauses in the Face of Moral Obligation, 17 CARDOZO J.L. &
GENDER 417 (2011). The narrowness of these exemptions is significant because four out of the
ten largest healthcare systems [are] controlled by the Roman Catholic Church in the United
States. Id. at 417.
50
51
See, e.g., OBrien, 894 F.Supp.2d at 1155.
52
Sarah Pulliam Bailey, Obama Does Not Widen Religious Exemption for Contraceptive Mandate,
CHRISTIANITY TODAY (Feb. 10, 2012, 1:18 PM),
http://www.christianitytoday.com/ct/2012/februaryweb-only/widen-contraceptive-mandate.html.
53
Stephanie Simon & Caren Bohan, Obama Shift Seeks to Defuse Birth-Control Fight, REUTERS
(Feb. 10, 2012, 6:25 PM), http://www.reuters.com/article/2012/02/10/us-usa-contraceptives-
idUSTRE8181MX20120210.
54
FAQs: Becket Funds Lawsuits Against HHS, THE BECKET FUND FOR RELIGIOUS LIBERTY,
http://www.becketfund.org/faq/ (last visited Feb. 11, 2013); Obama compromise angers pro-life
activists; USCCB response muted, CATHOLICCULTURE.ORG (Feb. 10, 2012)
http://www.catholicculture.org/news/headlines/index.cfm?storyid=13292.
55
FAQs: Becket Funds Lawsuits Against HHS, supra note 54; Obama compromise angers pro-
life activists; USCCB response muted, supra note 54; see also Tyndale House Publishers, Inc. v.
Sebelius, 904 F.Supp.2d 106, 122-23 (D.D.C. 2012) (discussing the distinction between group
health insurance policies and self-insured plans).
57

despite having less than fifty employees.
56
Finally, while for-profit business entities
can theoretically qualify for the grandfathered health care plan exemption, in
practice many business entities have failed to qualify.
57

II. RFRA & FOR-PROFIT BUSINESS CHALLENGES

Before discussing the individual cases challenging the HHS mandate, it is
necessary to introduce the RFRA
58
because it is the primary claim the courts have
addressed in order to determine whether to grant an injunction enjoining
enforcement of the HHS mandate.
59
The RFRA prevents the government from
substantially burdening an exercise of religion and applies to all later-enacted
federal law, including its regulatory implementation, unless such law explicitly
excludes such application by reference to this chapter.
60
The ACA does not contain
a provision explicitly overriding the RFRA, thus the RFRA applies to the ACA.
61

Finally, the RFRA provides adequate grounds for injunctive relief.
62
This note
primarily addresses the first two RFRA prongs because it is the first two prongs that
raise the question of whether a business entity can exercise religion, and whether the
HHS mandate is a substantial burden on such an exercise.
63
The final two prongs are
only addressed upon a finding that a business entity can exercise religion.

A. Religious Freedom Restoration Act

Congress enacted the RFRA in 1993 in response to the Supreme Court
decision in Employment Division v. Smith,
64
which virtually eliminated the
requirement that the government justify the burdens imposed on religious exercise
by laws neutral towards religion.
65
The RFRA restores the compelling interest test
as set forth in Sherbert v. Verner and Wisconsin v. Yoder.
66
The RFRA applies in all
cases where the free exercise of religion has been substantially burdened.
67
To
restore the pre-Smith test, the RFRA explicitly provides that:

56
See supra notes 43-47 and accompanying text; see also Hobby Lobby Stores, Inc. v. Sebelius,
870 F.Supp.2d 1278, 1285 (W.D. Okla. 2012).
57
See, e.g., infra notes 112, 131 and accompanying text.
58
Religious Freedom Restoration Act (RFRA) of 1993, 42 U.S.C. 2000bb to 2000bb-4 (2006).
59
See, e.g., Korte v. Sebelius, 528 Fed.Appx. 583, 585 (7th Cir. 2012) (noting that for the purpose
of the plaintiffs motion for an injunction, they rely solely on their RFRA claim); Legatus v.
Sebelius, 901 F.Supp.2d 980, 984 (E.D. Mich. 2012) (noting that the plaintiffs move for a
preliminary injunction under the Religious Freedom Restoration Act); Tyndale House Publishers,
Inc. v. Sebelius, 904 F.Supp.2d 106, 120 (D.D.C. 2012) (analyzing the plaintiffs RFRA claim in
determining whether to grant an injunction); Monaghan v. Sebelius, 916 F.Supp.2d 802, 808 (E.D.
Mich. 2012) (analyzing the plaintiffs RFRA claim in determining whether to grant an injunction).
60
Whelan, supra note 17, at 2181; 42 U.S.C. 2000bb-3(b) (2006); see also City of Boerne v.
Flores, 521 U.S. 507, 536 (1997) (invalidating the RFRA as unconstitutionally applied to the states
through 5 of the 14
th
Amendment); United States v. Wilgus, 638 F.3d 1274, 1279 (10th Cir.
2011) (noting that the RFRA remains constitutional as applied to the federal government).
61
Whelan, supra note 17, at 2181.
62
See supra note 17.
63
See infra Section II.A.
64
494 U.S. 872 (1990).
65
Validity, construction, and application of Religious Freedom Restoration Act (42 U.S.C.A.
2000bb et seq.), 135 A.L.R. 121, I. 2(a) (1996).
66
Id.
67
Id.
58

Government shall not substantially burden a person's exercise of
religion even if the burden results from a rule of general
applicability, unless the government can demonstrate that
application of the burden to the person (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.
68

Thus, the first issue in the RFRA analysis, as applied to for-profit business
entities challenging the HHS mandate, is whether a for-profit business entity
engages in an exercise of religion when it, for religious reasons, refuses to
provide health insurance that covers the FDA-approved contraceptives.
69
Implicit
within this issue is whether a business entity is a person within the meaning of the
RFRA.
70
While this is an issue of first impression, the Supreme Courts
jurisprudence defining exercise of religion is extremely helpful in analyzing
whether a business entity can exercise religion. First, the RFRA itself defines
religious exercise as including any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.
71
Indeed, in Sherbert v.
Verner, the plaintiffs religion forbade her from working on Saturdays, the Sabbath
Day of her faith, and her refusal to do so was considered an exercise of religion.
72

Likewise, in Wisconsin v. Yoder, the parents of teenage children refused to send
them to high school because they believed attendance at high school, public or
private, was contrary to their religion and way of life.
73
This refusal was considered
an exercise of religion.
74
Thus, when a person performs, or abstains from
performing, certain actions for religious reasons, that person has engaged in an
exercise of religion within the meaning of the RFRA.
75

The second issue in the RFRA analysis is whether the HHS mandate
substantially burdens such an exercise of religion.
76
Since [the] RFRA does not
purport to create a new substantial burden test, courts often look to pre-Smith cases
to determine which burdens are substantial.
77
In Sherbert v. Verner, the plaintiffs
religious exercise was impermissibly burdened when the plaintiff was forced [to]

68
42 U.S.C. 2000bb-1(a), (b) (2006).
69
See Whelan, supra note 17, at 2181.
70
See e.g., Newland v. Sebelius, 881 F.Supp.2d 1287, 1296-99 (D. Colo. 2012) (considering (1)
whether Hercules, a for-profit S-corporation, can engage in an exercise of religion, (2) whether
Plaintiffs have demonstrated that the preventive care coverage mandate substantially burdens their
free exercise of religion, and (3) whether the government has demonstrated that the preventive
care coverage mandate is the least restrictive means to achieve a compelling interest). See also
Holy Land Found. v. Ashcroft, 333 F.3d 156, 167 (2003) (noting that the lower court held that a
corporation is not a person within the meaning of RFRA, but stating [t]hat may be, but we do not
so decide today); see infra Section III.A.
71
42 U.S.C. 2000cc-5 (2006) (emphasis added).
72
Sherbert v. Verner, 374 U.S. 398, 400-02 (1963).
73
Wisconsin v. Yoder, 406 U.S. 205, 209 (1972).
74
Id. at 213-14.
75
See Whelan, supra note 17, at 2182; see also Empt Div. v. Smith, 494 U.S. 872, 877 (1990)
(noting that the exercise of religion often involves not only belief and profession but the
performance of (or abstention from) physical acts).
76
77
Goodall by Goodall v. Stafford Cnty. School Bd., 60 F.3d 168, 171 (4th Cir. 1995); see also
OBrien v. U.S. Dept of Health & Human Servs., 894 F.Supp.2d 1149, 1158 (E.D. Mo. 2012)
(noting that courts frequently look to free exercise cases predating Employment Div. v. Smith to
determine which burdens cross the threshold of substantiality).
59

choose between following the precepts of her religion [by resting, and not working,
on her Sabbath] and forfeiting [unemployment] benefits, on the one hand, and
abandoning one of the precepts of her religion in order to accept work, on the other
hand.
78
Likewise, in Wisconsin v. Yoder, the parents religious exercise was
substantially burdened when they were forced to choose between educating their
children as their religion demanded and facing criminal prosecution, or sending
their children to school in contravention of their religious beliefs.
79
Typically, laws
that substantially burden free exercise of religion discourage such free exercise by
exacting a price on the plaintiff for religious practicesuch as paying a fine,
forfeiting a benefit, or facing criminal prosecution.
80
However, there is some
scholarly disagreement as to how direct a burden must be in order to constitute a
substantial burden on an exercise of religion.
81

The third issue in the RFRA analysis is whether there is a compelling
governmental interest to justify such a substantial burden.
82
The RFRA requires the
government to establish that its compelling interest is satisfied through application
of the challenged law to the particular claimant whose sincere exercise of religion
is being substantially burdened.
83
Indeed, in Wisconsin v. Yoder, the Court
explained that the government needed to show with more particularity how its
admittedly strong interest . . . would be adversely affected by granting an exemption
to the Amish.
84

The final issue in the RFRA analysis is whether the application of the
burden to the business entity is the least restrictive means of furthering that
compelling governmental interest.
85
Indeed, if the government is able to establish a
compelling governmental interest in applying the HHS mandate to a business entity,
it must also demonstrate that there are no feasible less-restrictive alternatives.
86
In
so doing, the government need not refute every conceivable option, merely the
alternative schemes offered by the challenger.
87

In order for a for-profit business entity to prevail on its RFRA claim, it
must satisfy all four prongs.
88
Since this note concentrates on whether a business

78
Sherbert, 374 U.S. at 404.
79
Yoder, 406 U.S. at 218; see also Gonzales v. O Centro Espirita Beneficente Uniao do Vegteal,
546 U.S. 418, 426 (2006) (where the Government conceded that the Controlled Substances Act
imposed a substantial burden on religious exercise when the Act prevented a religious sect from
engaging in their traditional communion using a hallucinogenic tea).
80
81
Compare Whelan, supra note 17, at 2183-84 (arguing that a burden may be substantial despite
being indirect and that the substantial burden threshold is a very low threshold) with OBrien,
894 F.Supp.2d at 1158 (reasoning that a substantial burden is a difficult threshold to cross and
holding that the HHS mandate is only a de minimus burden on plaintiffs religious exercise)
(quoting Living Water Church of God v. Charter Twp. of Meridian, 258 Fed.Appx. 729, 736 (6
th

Cir. 2007)). See infra Section III.B.
82
83
Gonzales, 546 U.S. at 430-31 ([T]he Government can demonstrate a compelling interest in
uniform application of a particular program by offering evidence that granting the requested
religious accommodations would seriously compromise its ability to administer the program.).
84
Id. at 431 (quoting Wisconsin v. Yoder, 406 U.S. 205, 236 (1972) (emphasis added)). The Court
also stated that context matters in applying the compelling interest test, and that strict scrutinys
purpose is to take relative differences into account. Id. at 431-32.
85
86
Newland v. Sebelius, 881 F.Supp.2d 1287, 1298 (D. Colo. 2012).
87
U.S. v. Wilgus, 638 F.3d 1274, 1289 (10th Cir. 2011).
88
See supra note 68 and accompanying text.
60

entity can exercise religion, it primarily focuses on the first two prongs of the RFRA.
However, assuming for-profit business entities can establish that the HHS mandate
is a substantial burden on their free exercise of the Supreme Court made it clear in
Citizens United that business entities are persons capable of
religion, the government can still respond with a compelling governmental interest
advanced in the least restrictive means justifying that burden.
89

B. For-Profit Business Challenges to the HHS Mandate

In response to the HHS mandate, for-profit business entities and their
owners filed lawsuits alleging violations of the RFRA, thirty-nine of which have
received judicial resolution.
90
Thirty-three of the for-profit plaintiffs have secured
injunctive relief enjoining enforcement of the HHS mandate, while the remaining
six have been denied injunctive relief.
91
In order to grant an injunction, the plaintiffs
have the burden of demonstrating, inter alia, a likelihood of success on the merits
of their RFRA claim.
92
As such, the decision to grant or deny an injunction touches
the merits of the issue whether a for-profit business entity can exercise religion and
whether the HHS mandate is a substantial burden on such an exercise.
93
Catholic
business owners have filed the majority of lawsuits challenging the HHS mandate,
though Evangelical Christians have filed lawsuits as well.
94

1. Catholic Teaching on the Use of Contraceptives

The businesses that filed these lawsuits were required by the HHS mandate
to provide The Pill, Plan B, Ella, and sterilization procedures in their health
insurance plans, despite the fact that these products and procedures have known
abortifacient effects.
95
Abortifacients, such as Plan B and Ella, can cause the death
of human embryos by preventing them from implanting in the uterus.
96
While
Secretary Sebelius has argued that the HHS mandate does not require insurance
plans to cover any abortifacients, the United States Conference of Catholic Bishops

89
90
See HHS Mandate Information Central, supra note 6.
91
Id.
92
Newland, 881 F. Supp. 2d at 1293. Additionally, the plaintiffs have the burden of demonstrating
a threat of irreparable harm, which outweighs any harm to the non-moving party, and that the
injunction would not adversely affect the public interest. Id.
93
See, e.g., Korte v. Sebelius, 528 Fed.Appx. 583, 588 (7th Cir. 2012) (noting that
the Kortes have established a reasonable likelihood of success on their claim that the
contraception mandate imposes a substantial burden on their religious exercise).
94
See, e.g., Newland, 881 F. Supp. 2d at 1292 (filed by Catholics); OBrien v. U.S. Dept of Health
& Human Servs., 894 F.Supp.2d 1149, 1154 (E.D. Mo. 2012) (filed by Catholics); Legatus v.
Sebelius, 901 F.Supp.2d 980, 984 (E.D. Mich. 2012) (filed by Catholics); Hobby Lobby Stores,
Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1285 (W.D. Okla. 2012) (filed by Evangelical Christians);
Korte, 528 Fed.Appx. at 585 (filed by Catholics); Autocam Corp. v. Sebelius, No. 1:12CV1096,
2012 WL 6845677, at *1 (W.D. Mich. Dec. 24, 2012) (filed by Catholics); Monaghan v. Sebelius,
916 F.Supp.2d 802, 806 (E.D. Mich. 2012) (filed by Catholics).
95
See supra text accompanying notes 35-41. The Merriam-Webster dictionary defines abortifacient
as an agent (as a drug) that induces abortion. MERRIAM-WEBSTER, available at
http://www.merriam-webster.com/dictionary/abortifacient.
96
Matt Cover, Sebelius Claims No Abortifacient Drug Covered by Contraception Mandate, CNS
NEWS (Mar. 1, 2012), http://cnsnews.com/news/article/sebelius-claims-no-abortifacient-drug-
covered-contraception-mandate.
61

(USCCB) has cited numerous medical studies reporting that there are at least seven
modes by which Plan B and Ella can prevent the implantation and survival of a
human embryo.
97
The Catholic Church opposes the use of all contraception.
98

Indeed, in Pope Paul VIs 1968 encyclical Humanae Vitae, the Pope declared that
all direct abortion . . . direct sterilization . . . [and] any action which either before,
at the moment of, or after sexual intercourse, is specifically intended to prevent
procreation, whether as an end or as a meansincluding contraception and
abortifacientsis a grave sin to be condemned.
99
As a result, the Catholic for-
profit business owners discussed below have a religious objection to the use of
contraception and are morally opposed to having to provide and pay for such
contraception in the health insurance plans they provide their employees, believing
it would be sinful for them to do so.
100

2. Newland v. Sebelius

In Newland v. Sebelius, the plaintiff is Hercules Industries, Inc. (Hercules),
a Colorado Subchapter-s Corporation engaged in the manufacture and distribution
of heating, ventilation, and air conditioning (HVAC) products and equipment.
101

Hercules is a for-profit employer owned by the Newland family, who also comprise
Hercules board of directors.
102
Hercules employs 265 full-time employees.
103
The
Newland family adheres to the Catholic faith and, according to their complaint,
they seek to run Hercules in a manner that reflects their sincerely held religious
beliefs.
104
Indeed, since 2010, the Newlands have implemented within Hercules a
program by which companies build their corporate culture based on Catholic
principles.
105
Since 2008, Hercules has donated nearly $60,000 every year to
Catholic parishes, schools, and charitable causes.
106
On June 25, 2012, Hercules
amended the Purposes section in its articles of incorporation to reflect the role
religion plays in its corporate governance.
107
These amendments state that the
corporation shall have the power to accomplish its purposes following appropriate
religious, ethical or moral standards, and that the board may prioritize these
purposes even should the adoption of any religious, ethical or moral [standard]
result in a reduction of the profitability of the Corporation.
108

97
Cover, supra note 96; see also Understanding the Affordable Care Acts Coverage for
Preventative Care, THE HEALTH & HEALTHCARE BLOG (Dec. 31, 2012),
http://blog.affordablehealthinsurance.org/2012/12/understanding-affordable-care-acts.html
(discussing whether the FDA-approved contraceptive drugs are actually abortifacients).
98
Pope Paul VI, Humanae Vitae (1968), available at
http://www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_p-
vi_enc_25071968_humanae-vitae_en.html.
99
Id.
100
See, e.g., Amended Complaint at 32, Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo.
2012) (No. 1:12cv1123JLK).
101
Newland v. Sebelius, 881 F. Supp. 2d 1287, 1292 (D. Colo. 2012).
102
Id.
103
Amended Complaint at 38, Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012) (No.
1:12cv1123JLK).
104
Id. at 2.
105
Id. at 36.
106
Id. at 35.
107
Id. at 112.
108
Id. at 112.
62

Hercules maintains a self-insured group plan for its employees.
109

Significantly, Hercules self-insured plan does not cover abortifacient drugs,
contraception, or sterilizationand has not done so for any of its November 2011
through October 2012 plan year.
110
Because Hercules is a for-profit corporation, it
does not qualify as a religious employer within the meaning of the HHS mandate
exemptions.
111
Moreover, Hercules health insurance plan is not grandfathered
under the ACA.
112
Neither does Hercules qualify for the temporary enforcement
safe-harbor provision.
113
Therefore, Hercules owners must choose between
complying with the HHS mandate and providing no-cost contraceptive coverage to
their employees or adhering to their religious beliefs and facing monetary
penalties.
114

Because the HHS mandate went into effect on August 1, 2012 for for-
profit businesses, Hercules filed a Motion for a Preliminary Injunction enjoining
enforcement of the HHS mandate.
115
On July 27, 2012, Judge Kane granted the
motion, finding a substantial likelihood of success on the merits of Hercules
alleged RFRA violation.
116
While the courts reasoning did not explicitly address
the question whether a corporation can exercise religion,
117
the court implicitly
conceded that it was possible by discussing in its analysis whether there was a
compelling governmental interest to justify the substantial burden on Hercules
exercise of religion.
118
Finally, in reasoning that the government failed to meet its
burden of establishing that the HHS mandate is the least restrictive means of
furthering its compelling interest, the court held that the balance of the equities tip
strongly in favor of injunctive relief in this case.
119
Thus, the court granted
Hercules Motion for a Preliminary Injunction enjoining enforcement of the HHS
mandate.
120

3. OBrien v. U.S. Department of Health and Human Services

The Plaintiff in OBrien v. U.S. Department of Health and Human Services
is OBrien Industrial Holdings, LLC (OIH), a for-profit Missouri limited liability
company engaged in the business of mining, processing, and distributing refractory
and ceramic materials and products through its subsidiaries.
121
OIH and its

109
Newland v. Sebelius, 881 F. Supp. 2d 1287, 1292 (D. Colo. 2012).
110
Amended Complaint, supra note 103, at 41.
111
Newland, 881 F. Supp. 2d at 1293. Only nonprofit organizations qualify as religious
employers. See supra text accompanying note 44.
112
Newland, 881 F. Supp. 2d at 1293.
113
Id.
114
Id.
115
See supra text accompanying note 40.
116
Newland, 881 F. Supp. 2d at 1299; see also supra note 40 and accompanying text.
117
See supra text accompanying note 10 (containing Judge Kanes recognition that this is a
question of first impression before implicitly conceding the answer by moving to the next step in
the RFRA analysis).
118
Newland, 881 F. Supp. 2d at 1296-97.
119
Id. at 1299.
120
Id.
121
OBrien v. U.S. Dept of Health & Human Servs., 894 F.Supp.2d 1149, 1154 (E.D. Mo. 2012).
63

subsidiaries have eighty-seven employees.
122
Frank OBrien holds the sole voting
interest and is the chairman and managing member of OIH.
123
He is also Catholic
and strives to operate OIH in a manner consistent with the teachings of
Catholicism.
124
As such, according to OIHs website, OIH and its subsidiaries share
a common mission to make our labor a pleasing offering to the Lord while
enriching our families and society.
125
In addition to a statue of the Sacred Heart of
Jesus
126
being prominently displayed in OIHs main lobby, the companys statement
of values on its website references the Golden Rule, the Ten Commandments, and
verses from Ephesians.
127
Finally, OIH and its subsidiaries pledge[d] to tithe on the
earnings of the [c]ompanies.
128

OIHs employees are covered by a group policy of health insurance offered
and underwritten by United Healthcare Insurance Company.
129
As with Hercules,
OIH does not qualify for any of the exemptions from the HHS mandate.
130

Significantly, the grandfathered health plan exemption does not avail OIH because
the current group health insurance plan that OIH provides its employees covers
contraceptives.
131
According to OIHs Amended Complaint, [w]hen OIH switched
from a self-insured plan to a fully-insured plan a few years ago, coverage of
contraceptive services was inadvertently included contrary to the companys
longstanding practice and intentions, as well as the actual coverage request and
without OIHs knowledge.
132
Finally, OIH will be subject to fines if it offers its
employees a group health insurance plan but excludes coverage for
contraceptives.
133

OIH filed its complaint on March 15, 2012, seeking a permanent injunction
enjoining enforcement of the HHS mandate against OIH because OIHs health plan
was due for renewal on January 1, 2013.
134
The court granted defendants motion to
dismiss OIHs Amended Complaint because the court found, inter alia, that the
HHS mandate did not impose a substantial burden on either Frank OBrien or
OIH.
135
As a result, the court declined to reach the question of whether a secular

122
Complaint at 24, OBrien v. U.S. Dept of Health & Human Servs., 894 F.Supp.2d 1149 (E.D.
Mo. 2012).
123
124
Id.
125
Complaint at 20, OBrien v. U.S. Dept of Health & Human Servs., 894 F.Supp.2d 1149, 1154
(E.D. Mo. 2012).
126
Catholic devotion to the Sacred Heart of Jesus is focused on Christs love, of which his Heart
is said to be the living and expressive symbol. Some Catholics display images pertaining to this
devotion in their homes and workplaces. Id. at 18 n.1.
127
Id. at 21-22.
128
Id. at 23.
129
Id. at 24.
130
131
Id.
132
Id. (quoting Am. Compl. 28).
133
Id.
134
Id. at 1156.
135
Id. at 1157, 1169. The court reasoned that requiring indirect financial support of a practice,
from which plaintiff himself abstains according to his religious principles, [does not] constitute[] a
substantial burden on plaintiffs religious exercise. Id. at 1160. According to the court, the burden
of which plaintiff complains that funds which the plaintiffs contribute to a group health plan,
might, after a series of independent decisions by health care providers and patients covered by
OIHs plan, subsidize someone elses participation in an activity that is condemned by plaintiffs
religion is not substantial. Id.
64

limited liability company is capable of exercising a religion within the meaning of
[the] RFRA.
136
However, on November 28, 2012, the Eighth Circuit granted
Appellant-OBriens motion for an injunction pending appeal without discussion.
137

4. Hobby Lobby Stores, Inc. v. Sebelius

The Plaintiff in Hobby Lobby Stores, Inc. v. Sebelius is a privately held for-
profit retail corporation, Hobby Lobby Stores, Inc. (Hobby Lobby), owned and
operated by a family of evangelical Christiansthe Green family.
138
Hobby Lobby
operates over 500 stores in forty states and has over 13,000 full-time employees.
139

The Green family employs full-time chaplains to meet their employees spiritual
and emotional needs.
140
Moreover, they give millions of dollars from their profits to
missionaries and ministries around the world, and they close their stores on
Sundays.
141
The Green family operates Hobby Lobby through a management trust,
which owns all of the voting stock of Hobby Lobby.
142
By its own terms, the trust
exists to honor God and to use Green family assets to create, support, and
leverage the efforts of Christian ministries.
143
Hobby Lobbys statement of purpose
also reflects the Green familys Christian faith.
144

The Green family provides health insurance coverage to Hobby Lobbys
employees through a self-insured plan.
145
The Green family objects to providing
abortion-causing contraceptives, and Hobby Lobbys insurance policies have long
excluded such drugs.
146
The Green family does not have a religious objection to
providing non-abortion-causing contraceptive drugs and devices.
147
However,
upon learning about the HHS mandate, Hobby Lobby re-examined its insurance
policies to ensure they continued to be consistent with its faith and discovered
that, unbeknownst to the Green family, Hobby Lobby had been covering Plan B and
Ella in its employee health insurance plans.
148
Because coverage of such abortion-
causing contraceptives was inconsistent with Hobby Lobbys Christian practices,
Hobby Lobby immediately excluded the inconsistent drugs from its policy.
149

According to Hobby Lobbys Motion for Preliminary Injunction, Hobby Lobby will
incur penalties of $1.3 million per day if it continues to offer health insurance
without the mandated contraceptives and penalties of $26 million per year if it
ceases to offer its employees health insurance.
150

136
Id. at 1158.
137
Korte v. Sebelius, 528 Fed.Appx. 583, 587 (7th Cir. 2012).
138
Complaint at 2, Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla.
2012) (No. CIV121000HE).
139
Id.
140
Id. at 6.
141
Id.
142
Id. at 38.
143
Id.
144
Id. at 42.
145
Id. at 52.
146
Id. at 56.
147
Id. at 57.
148
Id. at 55.
149
Id.
150
Motion For Preliminary Injunction at 5, Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d
1278 (W.D. Okla. 2012) (No. CIV121000HE). See also Eric Marrapodi, Hobby Lobby Faces
Millions in Fines for Bucking Obamacare, CNN (Dec. 27, 2012, 7:20 PM),
65

Hobby Lobby filed its complaint on September 12, 2012, seeking a
permanent injunction enjoining enforcement of the HHS mandate against Hobby
Lobby.
151
On November 19, 2012, the U.S. District Court for the Western District
of Oklahoma held that corporations are not persons within the meaning of the
RFRA and denied the motion.
152
The court reasoned that corporations do not,
separate and apart from the actions or belief systems of their individual owners . . .
pray, worship, observe sacraments or take other religiously-motivated actions.
153

The court also discussed the potential impact of the employers faith-based
decisions on its employees.
154
The court noted that, as Hobby Lobby employs over
13,000 people, many of the employees are likely to have different religious views,
and that the employees rights being affected are of constitutional dimension,
related to matters of procreation, marriage, contraception, and abortion.
155
On
March 25, 2014, the Supreme Court heard oral arguments on Hobby Lobbys HHS
mandate challenge.
156

5. Tyndale House Publishers, Inc. v. Sebelius

Next, at issue in Tyndale House Publishers, Inc. v. Sebelius is Tyndale
House Publishers, Inc. (Tyndale), a closely held corporation that publishes a variety
of Christian books.
157
Tyndale employs 260 full-time employees and utilizes a self-
insured health plan in order to provide them with health insurance.
158
While Tyndale
is 96.5% owned by Tyndale House Foundation (Foundation), a non-profit religious
entity, only 8.4% of those shares are voting shares.
159
The Tyndale Trust owns 84%
of Tyndales voting shares, and thus the Tyndale Trust primarily controls
Tyndale.
160
Tyndales board of directors also serves as trustees for the Tyndale
Trust.
161

The Foundation, as recipient of 96.5% of Tyndales distributed profits,
directs much of the profits to various charitable causes, including a Christian
community center in the Chicago area, a legal aid clinic, and evangelistic work
worldwide.
162
Tyndale holds a weekly voluntary chapel service for its employees,
which over 50% of employees attend.
163
Moreover, Tyndales board of directors is

http://religion.blogs.cnn.com/2012/12/27/hobby-lobby-faces-millions-in-fines-for-bucking-
obamacare/.
151
Complaint, Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012)
(No. CIV121000HE).
152
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291, 1297 (W.D. Okla. 2012).
153
Id. at 1291. The court also held that Hobby Lobby, as a secular for-profit corporation, does not
have First Amendment rights and that the HHS mandate would not substantially burden the
Greens religious exercise. Id. at 1296.
154
Id. at 1296.
155
Id.
156
Nina Totenberg, Hobby Lobby Contraceptive Case Goes Before Supreme Court, NPR (March
25, 2014 3:18 AM), http://www.npr.org/2014/03/25/293956170/hobby-lobby-contraceptive-case-
goes-before-supreme-court.
157
Tyndale House Publishers, Inc. v. Sebelius, 904 F.Supp.2d 106, 111 (D.D.C. 2012).
158
Id.
159
Id.
160
Id. at 112.
161
Id.
162
Id. at 112.
163
Id. at 116.
66

required to sign a Statement of Faith each year in order to show they hold certain
evangelical Christian beliefs, and Christian prayer is routine practice at Tyndales
board meetings.
164
Finally, Tyndale adopted a statement of belief and policy,
which outlines Tyndales respect for the sanctity of human life and corresponding
exclusion of certain drugs and devices, including Plan B and Ella, that can cause
the demise of an already conceived/fertilized human embryo.
165

Tyndale filed its complaint on October 2, 2012, seeking a preliminary
injunction enjoining enforcement of the HHS mandate.
166
While the court in
Tyndale decline[d] to address the unresolved question of whether for-profit
corporations can exercise religion within the meaning of the RFRA, it nonetheless
granted Tyndales motion for a preliminary injunction, holding that Tyndale has
standing to assert its owners RFRA claim.
167
The court reasoned that because
Christian principles, prayer, and activities are pervasive at Tyndale . . . the beliefs
of Tyndale and its owners are inseparable, and thus Tyndale has standing to assert
the RFRA claims of its owners.
168
Lastly, the court found a strong likelihood of
success on the merits of [the plaintiffs] RFRA claim.
169

6. Monaghan v. Sebelius

Finally, in Monaghan v. Sebelius is Dominos Farms, Corp. (DF), a for-
profit property management company owned by sole shareholder Thomas
Monaghan.
170
DF is the property management company for Dominos Farm Office
Park, LLC, a premier office park home to over fifty corporations, professional firms,
and entrepreneurial businesses.
171
DF employs forty-five full-time employees and
forty-four part-time employees.
172
Monaghan is Catholic and believes that the use of
contraception is immoral and does not properly constitute health care.
173

DF offers a variety of amenities and services to its tenants, including an
on-site chapel that offers Mass twenty-three times each week, a bistro, fitness center,
and Catholic bookstore.
174
DF designed an insurance policy with Blue Cross/Blue
Shield of Michigan, which specifically excluded coverage of contraception,

164
Id. at 112, 116
165
Id. at 112 (quoting Compl. at 39, 51, 59, 62).
166
Id. at 112-13.
167
Id. at 114, 117.
168
Id. at 116. The court adopted the Ninth Circuits Townley-Stormans theory of free exercise
standing, which posits that when the beliefs of a closely-held corporation and its owners are
inseparable, the corporation should be deemed the alter-ego of its owners for religious purposes.
Id. at 117. Indeed, in such circumstances, courts must consider the rights of the owners as the
basis for the [f]ree [e]xercise claim brought by the corporation, even if the regulation technically
only applies to the corporation. Id. (quoting Stormans, Inc. v. Selecky, 586 F.3d 1109, 1120-22
(9th Cir. 2009)). Thus, because the beliefs of Tyndale and its owners are indistinguishable, the
court found that Tyndale has made a satisfactory showing of Article III standing. Id. at 116-17.
The court also noted that even if it did not adopt the Townley-Stormans theory of free exercise
standing, it would nonetheless find that Tyndale has standing to assert its owners free exercise
rights under the third-party standing doctrine. Id. at 117
169
Id. at 129.
170
Monaghan v. Sebelius, 916 F.Supp.2d 802, 805 (E.D. Mich. 2012).
171
Complaint at 24-25, Monaghan v. Sebelius, 916 F.Supp.2d 802 (E.D. Mich. 2012).
172
Id. at 32.
173
Monaghan, 916 F.Supp.2d at 807.
174
Complaint at 27-28, Monaghan v. Sebelius, 916 F.Supp.2d 802 (E.D. Mich. 2012).
67

abortion, and sterilization.
175
DFs health insurance plan is not grandfathered and
is therefore subject to the HHS mandate.
176

DF filed its complaint on December 14, 2012, seeking to enjoin the
enforcement of the HHS mandate against DF.
177
While the court took no position
as to whether DF, as a for-profit business, has an independent right to freely
exercise religion, the court held that Monaghan, as sole owner and director of DF,
could project his personal free exercise rights through DF.
178
The court reasoned
that even though the ACA does not, by its terms, require Monaghan to do anything
in his individual capacity, the HHS mandate nonetheless requires Monaghan to act,
as director of DF, in order to make DF provide contraceptive coverage to its
employeesa grave sin according to Monaghans religious beliefs.
179
After finding
that Monaghan has standing to assert his RFRA claim, the court found that he has a
likelihood of success on the merits of his claim.
180

Next, this note considers whether a for-profit business entity is a person
capable of exercising religion within the meaning of the RFRA.
181
It also considers
whether the HHS mandate constitutes a substantial burden on such an exercise.
182
It
then utilizes the facts and legal arguments from the discussed cases, in conjunction
with several policy considerations, in order to develop criteria for courts to consider
when determining whether a specific business entity is capable of exercising
religion.
183

III. ANALYSIS

Before determining whether a business entity is a person capable of
exercising religion within the meaning of the RFRA, it must be noted that the act of
refusing to cover the FDA-approved contraceptives in a health insurance policy for
religious reasons is likely an exercise of religion.
184
In Sherbert v. Verner, for
example, the plaintiffs refusal to work on Saturdays, the Sabbath Day of her faith,
was considered an exercise of religion.
185
Likewise, in Wisconsin v. Yoder, the
parents refusal to send their children to high school, believing it contrary to their
religion, was considered an exercise of religion.
186
Similarly, the refusal to cover

175
Id. at 50.
176
Id. at 82.
177
178
Id. at 808.
179
Id. (Monaghan asserts that acting to have his company provide such coverage would cause him
to commit a grave sin according to his religious beliefs. This argument is well-taken, since DF
cannot act (or sin) on its own. Therefore, even though the ACA does not literally apply to
Monaghan, the Court is in no position to declare that acting through his company to provide certain
health care coverage to his employees does not violate Monaghan's religious beliefs. They are,
after all, his religious beliefs.). Id. See also Thomas v. Review Bd. of Ind. Empt Sec. Div., 450
U.S. 707, 718 (1981) (finding it beyond the scope of judicial function and competence for a court
to decide whether a party is correctly understanding his religious doctrine because [c]ourts are not
arbiters of scriptural interpretation).
180
181
See infra Section III.A.
182
183
See infra Subsections III.C.1-3.
184
See infra text accompanying notes 185-188.
185
186
68

the FDA-approved contraceptives for religious reasons is likely an exercise of
religion.
187
Indeed, when a person performs, or abstains from performing, certain
actions for religious reasons, that person has engaged in an exercise of religion
within the meaning of the RFRA.
188
This leaves the unresolved issue of whether a
business entity is a person within the meaning of the RFRA. If a business entity is
not a person within the meaning of the RFRA, then a business entity is not
engaging in an exercise of religion when it refuses to cover contraceptives
because only persons engage in exercises of religion within the meaning of the
RFRA.
189

A. Can a Business Entity Exercise Religion?

The governments primary argument that business entities cannot exercise
religion is due to the fact that for-profit business entities are secular, and such
secular entities by definition cannot exercise religion.
190
Moreover, because for-
profit secular business entities cannot engage in an exercise of religion, the HHS
mandate cannot burden their free exercise of religion, leaving business entities
without any standing to raise a RFRA claim.
191
Another way of phrasing this
argument is that secular for-profit employers have no rights implicated under the
RFRA because business entities are not persons within the meaning of the
RFRA.
192
One court has endorsed this argument with the conclusion that the RFRA
extends its protections only to individuals, not business entities, because only
individuals are persons within the meaning of the RFRA.
193

However, the RFRA does not include a definition of person, despite
defining other terms.
194
As a result, a business entity should qualify as a person
within the meaning of the RFRA because of the general definition of the term
included in 1 U.S.C. 1.
195
That section provides: In determining the meaning of
any Act of Congress, unless the context indicates otherwise . . . the words person
and whoever include corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals.
196
Indeed, there is no
business or corporation exception to the RFRA or the Free Exercise Clause, and . . .

187
See Whelan, supra note 17, at 2181-82 (arguing that the Department of HHS implicitly
conceded in its explanation of the religious exemptions to the contraception mandate that
employers are engaged in an exercise of religion when they refuse to cover contraceptives for
religious reasons).
188
See supra note 75.
189
42 U.S.C. 2000bb-1(a), (b) (2006).
190
191
Newland v. Sebelius, 881 F.Supp.2d 1287, 1296 (D. Colo. 2012); Tyndale House Publishers,
Inc. v. Sebelius, 904 F.Supp.2d 106, 114 (D.D.C. 2012).
192
See, e.g., Korte v. Sebelius, 528 Fed.Appx. 583, 586 (7th Cir. 2012).
193
See Legatus v. Sebelius, 901 F.Supp.2d 980, 988 (E.D. Mich. 2012). Despite coming to this
conclusion, the court granted the plaintiffs motion for an injunction. Id. at *15.
194
42 U.S.C. 2000bb-2 (2006).
195
1 U.S.C. 1 (2006).
196
1 U.S.C. 1 (2006). But see Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291
(W.D. Okla. 2012) (holding that a corporation is not a person within the meaning of the RFRA
because the context indicates otherwise).
69

these provisions protect the religious exercise of any entity, regardless of for profit
status.
197

The court in Hobby Lobby Stores, Inc. responded to this 1 U.S.C. 1
general definition argument by holding that this is a situation where the context
indicates otherwise.
198
The court reasoned that the definition in 1 U.S.C. 1 seems
to not fit because religious exercise is a personal matter not belonging to the
province of business entities and because business corporations do not, separate
and apart from the actions or belief systems of their individual owners or
employees, exercise religion.
199
This reasoning, however, is flawed because neither
do business entities separate and apart from the actions or belief systems of their
individual owners exercise free speechand the Supreme Court made it clear in
Citizens United that business entities are persons capable of exercising free
speech.
200
As a result, business entities should be included within the term person
because it would be incongruous to conclude that secular corporations cannot
exercise religion after the Supreme Courts application of the First Amendment Free
Speech Clause in Citizens United.
201
Indeed, there is no principled reason to
apply only one clause of the First Amendment to business entities at the exclusion
of the others, especially considering the Supreme Courts declaration that First
Amendment protection extends to corporations.
202
The conclusion that business
entities are not persons because they do not independently exercise religion, but
are persons when it comes to exercising free speech, is at the very least
inconsistent because both forms of First Amendment exercise require action on the
part of the entitys owners in order to effectuate the exercise.
203
Indeed, it is only
because business entities have owners that they do anything at all.
204

As a result, this is not a situation where the context indicates otherwise,
and a business entity should be included within the term person. Therefore,
because a business entity qualifies as a person within the meaning of the RFRA, a
business entity engages in an exercise of religion when it refuses to provide the
FDA-approved contraceptives in its health insurance plan.
205

B. Is the HHS Mandate a Substantial Burden?

The government also argues that even if a business entity can exercise
religion, the burden of providing the FDA-approved contraceptive coverage is not
substantial.
206
The government reasons that business entities are only required to

197
Tyndale House Publishers, Inc. v. Sebelius, 904 F.Supp.2d 106, 114 (D.D.C. 2012) (quoting
Pls. Reply at 1-2).
198
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1291 (W.D. Okla. 2012).
199
Id.
200
Id.; Citizens United v. Fed. Election Commn, 130 S. Ct. 876, 900 (2010) (noting that political
speech does not lose First Amendment protection simply because its source is a corporation, and
reject[ing] the argument that political speech of corporations or other associations should be
treated differently under the First Amendment simply because such associations are not natural
persons).
201
202
Id.; Citizens United, 130 S. Ct. at 899.
203
204
See, e.g., Monaghan v. Sebelius, 916 F.Supp.2d 802, 808 (E.D. Mich. 2012) (noting that DF
cannot act (or sin) on its own).
205
See supra notes 185-188 and accompanying text.
206
70

provide indirect financial support of the contraceptives against which they
object.
207
In Hobby Lobby Stores, Inc., the court adopted this indirectness
argument, reasoning that
the particular burden of which plaintiffs complain is that funds,
which plaintiffs will contribute to a group health plan, might, after
a series of independent decisions by health care providers and
patients covered by [Hobby Lobbys] plan, subsidize someone
else's participation in an activity that is condemned by plaintiff's
religion. Such an indirect and attenuated relationship appears
unlikely to establish the necessary substantial burden.
208

However, in Thomas v. Review Board of the Indiana Employment Security
Division, the Supreme Court found that despite the indirect nature of the burden
suffered by the plaintiff, the infringement upon free exercise [was] nonetheless
substantial.
209
Other courts have specifically addressed the indirectness
argument, finding that it misunderstands the substance of the claim.
210
Indeed, the
free exercise burden at issue is not only in subsidizing someone elses use of the
FDA-approved contraceptives, but also in requiring business entities to cover such
contraceptives in the first place.
211

Furthermore, it is likely that requiring business entities to cover the FDA-
approved contraceptives constitutes a substantial burden given the penalties
imposed if a business chooses not to comply.
212
Any given business entity will be
fined roughly $2,000 per employee if it fails to provide the mandated
contraceptives.
213
Hobby Lobby, for example, will incur penalties of $1.3 million
per day if it continues to offer health insurance without the mandated contraceptives

207
See, e.g., id.
208
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012) (quoting
OBrien, 894 F.Supp.2d at 1160).
209
Thomas v. Review Bd. of Ind. Empt Sec. Div., 450 U.S. 707, 718 (1981). In Thomas, the Court
considered whether the State's denial of unemployment compensation benefits to the petitioner, a
Jehovah's Witness who terminated his job because his religious beliefs forbade participation in the
production of armaments, constituted a violation of his First Amendment right to free exercise of
religion. Id. at 709. Thomas terminated his employment when he was transferred to a department
of the Blaw-Knox Foundry & Machinery Co. that produced turrets for military tanks. Id. Upon
leaving, Thomas applied for unemployment compensation under the Indiana Employment Security
Act. Id. at 710. The Supreme Court of Indiana subsequently denied Thomas unemployment
compensation. Id. at 712. The Supreme Court held that Thomas could not be denied the benefits
due to him because he terminated his employment because of his religious convictions. Id. at 720.
The Court reasoned that where the state denied such a benefit because of conduct mandated by
religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to
violate his beliefs, a burden upon religion exists. Id. at 717-18. Moreover, [w]hile the
compulsion may be indirect, the infringement upon free exercise is nonetheless substantial. Id. at
718. Some courts have adopted this reasoning in their decision to grant an injunction, finding that
Thomas supports the notion that indirectness is not a barrier to finding a substantial burden. See,
e.g., Tyndale House Publishers, Inc. v. Sebelius, 904 F.Supp.2d 106, 122 (D.D.C. 2012).
210
Korte v. Sebelius, 528 Fed.Appx. 583, 587 (7th Cir. 2012) (The religious-liberty violation at
issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related
services, not or perhaps more precisely, not only in the later purchase or use of contraception or
related services.).
211
Id.
212
See Whelan, supra note 17, at 2183-84.
213
71

and penalties of $26 million per year if it ceases to offer its employees health
insurance.
214
In Wisconsin v. Yoder, the parents who refused to send their children
to high school were fined a mere $5 each, yet the Court still held that this fine
constituted a substantial burden.
215
As a result, the HHS mandate is a substantial
burden because it forces a business entity to choose between following the precepts
of its religion versus paying a substantial penalty.
216

Finally, whether a business entity provides insurance to its employees
through a group health insurance policy or a self-insured plan is also relevant to
whether the HHS mandate constitutes a substantial burden.
217
In OBrien, for
example, the court held that the burden on religious exercise was not substantial
because, inter alia, the plaintiff employed a group health insurance policy that was
separately administered by an insurance company.
218
As such, the plaintiff merely
contributed to a health insurance plan that ultimately paid for the contraceptive
services used by plan participants, resulting in several degrees of separation.
219

However, in Tyndale House Publishers, Inc., Tyndale employed a self-insured plan
wherein Tyndale acts as its own insurer.
220
This difference in providing
insurance is significant because Tyndale itself directly pays for the health care
services used by its plan participants, thereby removing one of the degrees of
separation that the court deemed relevant in OBrien.
221

While the distinction between group health insurance plans and self-
insured plans is relevant to the substantial burden analysis, it is unlikely to be
dispositive because the Supreme Court has held that indirect burdens can
nonetheless be substantial.
222
More importantly, all business entities that refuse to
provide the FDA-approved contraceptives are subject to penalties, regardless of
method of providing insurance to employees.
223
Thus, the most significant
distinction between self-insured business entities and group plan business entities is
that self-insured business entities face an even greater substantial burden than
group plan business entities because the former pays directly for the contraceptive
services used by plan participants in addition to being subject to the HHS mandates
penalties.

214
215
Wisconsin v. Yoder, 408 U.S. 205, 208 (1972).
216
See Whelan, supra note 17, at 2183-85. The [HHS mandate] forces [Catholic employers] to
choose between following the precepts of their religion and [incurring huge fines], on the one
hand, and abandoning one of the precepts of their religion in order to [stay in business], on the
other hand. Government imposition of such a choice puts the same kind of burden upon the free
exercise of religion as would a fine imposed against [Catholics] for their opposition to
[contraceptives and abortifacients]. Id. at 2184-85.
217
218
OBrien v. U.S. Dept of Health & Human Servs., 894 F.Supp.2d 1149, 1154, 1160 (E.D. Mo.
2012). Note that the Eighth Circuit subsequently overturned this decision, albeit without
discussion. See supra note 137 and accompanying text.
219
OBrien, 894 F.Supp.2d at 1160. The court also reasoned that Frank OBrien and OIH pay
salaries to their employeesmoney the employees may use to purchase contraceptives. Id. But see
supra note 210.
220
Tyndale House Publishers, Inc., 904 F.Supp.2d 106, 123 (D.D.C. 2012) (quoting Compl. 73).
221
Id. (emphasis added).
222
223
72

C. Policy Driven Limitations on Which Entities Can Exercise

While business entities can exercise religion, there are several legal and
policy driven limitations on the blanket statement that all business entities can
exercise religion.
224
Indeed, in order for a business entity to exercise religion, it
must (1) be owned by individuals professing adherence to a sincerely held religious
belief; (2) primarily employ individuals with the same religious belief; and (3) hold
itself out to the public as adhering to that religious belief. These requirements are
necessary to assuage several legitimate policy concerns stemming from the blanket
statement that all business entities can exercise religion.
225

1. Size of the Business Entity

First, in order for a business entity to exercise religion, it cannot employ a
large number of employeesor stated another way, it must primarily employ
individuals with the same religious belief as that of the entitys owners. This
limitation is necessary because [the] RFRA is a shield, not a sword . . . it is not a
means to force ones religious practices upon others, especially in business
entities.
226
Indeed, one of the problems with the blanket statement that all business
entities can exercise religion is the fact that in business entities with large numbers
of employees, many of those employees likely do not share the religious preference
of the entitys owners, thus denying those employees access to health insurance
coverage against which they do not object.
227
Hobby Lobby, for example, has over
13,000 employees.
228
The interests of all Hobby Lobbys employees was taken into
consideration by the district court when it decided that Hobby Lobby must provide
all FDA-approved forms of contraception in its health insurance policy.
229
Indeed,
these preventive drugs and services provide an array of health benefits to women,
which is why the Department of HHS sought to expand access to them.
230
Given the
fact that the RFRA cannot be used to force religious practices upon others, the
inescapable conclusion is that business entities with large numbers of employees
cannot exercise religion and must abide by the HHS mandate.
231

Still unresolved is the issue of how many employees constitute a large
number of employees, thus disqualifying that business entity from exercising

224
225
226
The court reasoned that the RFRAs proper role is to protect[] individuals from substantial
burdens on religious exercise that occur when the government coerces action one's religion forbids,
or forbids action one's religion requires. Id.
227
Noah Kaplan, Obamacare Injunction Dodges Question of Corporate Religious Freedom,
HARVARD CIVIL RIGHTS CIVIL LIBERTIES LAW REVIEW (Aug. 9, 2012),
http://harvardcrcl.org/2012/08/09/obamacare-injunction-dodges-question-of-corporate-religious-
freedom/; Wendy Kaminer, Why Are Secular Businesses Claiming Religious Rights?, THE
ATLANTIC (July 30, 2012, 12:21 PM), http://www.theatlantic.com/national/archive/2012/07/why-
are-secular-businesses-claiming-religious-rights/260463/ (arguing that [i]f the rights of diverse
employees in a secular enterprise are subject to the beliefs of their employers, then religious people
will not simply be laws unto themselves; they'll determine, in part, laws governing the rest of us).
228
229
See Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1296 (W.D. Okla. 2012).
230
See Sebelius Press Release, supra note 35; see also supra note 39 and accompanying text.
231
73

religion. While Hobby Lobbys 13,000 employees are likely too many, consider,
for example, Hercules 265 employees or OIHs eighty-seven employees.
232
While
this issue is a determination best left to the discretion of the deciding court, perhaps
265 or eighty-seven employees is not a large number of employees. Moreover,
because the third requirement for a business entity to exercise religion is that it must
hold itself out to the public as adhering to a religious belief,
233
the employees of
these smaller business entities will be on notice before accepting employment that
their employer can exercise religion and refuse to provide the contraceptives that the
employer finds objectionable. Another consideration relevant to this issue is the
fact that contraceptives are available to employees of these business entities from
other sources, such as community health centers, public clinics, and hospitals with
income-based support.
234

Finally, because the policy consideration at issue here is using the RFRA
to force religious exercise on a substantial number of non-adherents, the number of
employees that share the employers religious preference is also relevant to the
inquiry. In Tyndale House Publishers, Inc., for example, over 50% of Tyndales
employees attend the weekly chapel service, which is strong evidence that Tyndale
primarily employs individuals with the same religious preference as that of
Tyndales owners.
235
This fact strongly weighs toward the conclusion that Tyndale
is not too large to exercise religion. In making this determination, the court
should use its discretion, taking into consideration the fact that employees are on
notice and have access to contraceptives from other sources, when determining
whether a given business entity is too large to exercise religion.

2. Ownership of the Business Entity

Next, in order for a business entity to exercise religion, its owners must
profess adherence to a sincerely held religious belief. This limitation is necessary
because without it there would be nothing to stop all business entities from
amending their charter or bylaws, in an attempt to feign religious belief, merely to
take advantage of a religious loophole.
236
Indeed, there is certainly potential for
abuse of the right to exercise religion on the part of businesses that do not maintain
sincere religious objections but merely seek a competitive advantage in the form of
lower insurance premiums.
237
Some larger businesses, for example, have been
deploring the competitive advantage the ACA might provide small businesses, as
businesses with less than fifty employees are not required to provide health
insurance, making a religious exemption too tempting to ignore.
238
Moreover, such
an undefined, across the board allowance of business entities exercising religion

232
See supra text accompanying notes 103, 122.
233
234
Whelan, supra note 17, at 2187.
235
236
Kaplan, supra note 227.
237
238
Kaplan, supra note 227; Matthew Yglesias, Papa Johns Real ObamaCare Problem, SLATE
(Aug. 8, 2008, 9:53 AM),
http://www.slate.com/blogs/moneybox/2012/08/08/papa_john_s_and_obamacare_the_real_proble
m_is_subsidizing_competitors.html; see supra note 47 and accompanying text.
74

would likely lead to an explosion of litigation seeking injunctions against the HHS
mandate, regardless of any bona fide religious concerns.
239

An implication of this limitation is that public corporations cannot exercise
religion because their diffuse ownership by hundreds or thousands of shareholders
means they are not owned by individuals professing adherence to a sincerely held
religious belief.
240
Moreover, public corporations typically employ large numbers of
employees.
241
In order for a business entity to exercise religion, a family or small
group of individuals will likely own it and organize it in the form of a closely held
corporation or limited liability company.
242
Hercules Industries, Inc., for example, is
a Subchapter-S corporation owned by the Newland family, who also comprise
Hercules board of directors.
243
OIH is a limited liability company owned solely by
Frank OBrien,
244
and Hobby Lobby Stores, Inc. is a closely held corporation owned
and operated by the Green family.
245
The requirement that individuals professing
adherence to a sincerely held religious belief own the business entity properly limits
the scope of business entities that can exercise religion to those with bona fide
religious objections to the HHS mandate. The sincerity of the owners religious
belief must be reflected in the manner by which the business entity holds itself out
to the public as adhering to that religious belief.
246

3. The Business Entity Holds Itself Out to the Public as Adhering to a
Religious Belief

It is important that a business entity holds itself out to the public as
adhering to a religious belief so that prospective employees are aware of the entitys
affiliation and corresponding legal rights. Moreover, when a business entity takes
affirmative steps to demonstrate its religious belief to the public, it is probative of
the owners sincerely held religious belief. There are a variety of factors for the
courts to consider when determining whether a business entity holds itself out to the
public as adhering to a religious belief.
247

First, the business entity should include a Religious Purpose statement,
or its equivalent, in its articles of organization, charter, or websitea statement that
clearly signifies the business entity envisions itself as having a religious mission,
purpose, or ministry.
248
In, Newland, for example, the court considered the fact that
Hercules amended its articles of incorporation to reflect the role religion played in
its corporate governance.
249
Similarly, OIH included a statement of its religious

239
240
JAMES D. COX & THOMAS LEE HAZEN, 1 TREATISE ON THE LAW OF CORPORATIONS 1:20 (3d
ed. 2012).
241
Id.
242
See, e.g., infra text accompanying notes 243-245.
243
See supra text accompanying notes 101-102.
244
See supra text accompanying notes 121, 123.
245
246
247
248
See e.g., Newland v. Sebelius, 881 F. Supp. 2d 1287, 1292 (D. Colo. 2012).
249
Id. The amendments to the articles state that the corporation shall have the power to accomplish
its purposes following appropriate religious, ethical or moral standards, and that the board may
prioritize these purposes even should the adoption of any religious, ethical or moral [standard]
result in a reduction of the profitability of the Corporation. See supra note 108 and accompanying
text.
75

mission on its website in addition to a statement of values referencing the Golden
Rule and the Ten Commandments.
250
In Tyndale House Publishers, Inc., the court
noted that each member of the board of directors was required to sign a Statement
of Faith each year to show that they held certain evangelical Christian beliefs.
251
A
final example is Hobby Lobbys method of operating the business through a
management trust that exists, by its own terms, to honor God.
252
Regardless of
form, it must be in some manner memorialized that the business entity holds itself
out as having a religious identity.
Moreover, in the cases wherein injunctions have been granted, the business
entities have been able to demonstrate additional evidence of religious sincerity.
253

This is a reasonable requirement as it mitigates the temptation for businesses to
reincorporate with a Religious Purpose section in its articles without any bona
fide religious objections to the HHS mandate.
254
An example of the objective
criteria the courts can analyze to determine whether an entity is sincerely operating
according to a religious belief is whether the entity routinely donates money to
various charities or causes.
255
In Newland, Hercules donated nearly $60,000 every
year to Catholic parishes, schools, and charitable causes.
256
Similarly, in OBrien,
OIH and its subsidiaries pledged to tithe on the earnings of the companies.
257

Finally, in Hobby Lobby Stores, Inc., the entity gave millions of dollars from its
profits to missionaries and ministries around the world.
258
Because not all business
entities are profitable enough to consistently donate sums of money to various
charities, this is but one factor among many for courts to consider.
Other factors for courts to consider in determining whether a business
entity holds its religious belief out to the public include, inter alia, not operating the
entity on Sundays, despite the potential profits, and providing religious services for
its employees.
259
Hobby Lobby, for example, provides full-time chaplains to meet
the spiritual and emotional needs of its employees and closes the store on
Sundays.
260
DF has an on-site chapel that offers Mass twenty-three times each
week.
261
Moreover, in the lobby of OIH is a prominently displayed statue of the
Sacred Heart of Jesusa clear sign to the public that OIH is operated according to
its owners religious belief.
262
Finally, the Newland family implemented within
Hercules a program by which companies build their corporate culture based on
Catholic principles.
263

A final, and perhaps obvious, factor for the courts to consider is whether
the business entity has taken steps to exclude the objectionable contraceptives from

250
OBrien v. U.S. Dept of Health & Human Servs., 894 F.Supp.2d 1154 n.3 (E.D. Mo. 2012).
251
252
253
See infra text accompanying notes 255-257, 262-263.
254
See supra Subsection III.C.2.
255
256
257
258
See supra text accompanying note 141. See also Tyndale House Publishers, Inc. v. Sebelius,
904 F.Supp.2d 106, 111 (D.D.C. 2012) (noting that the owner of Tyndale directs much of its
proceeds to various charitable causes).
259
260
261
262
OBrien v. U.S. Dept of Health & Human Servs., 894 F.Supp.2d 1154 n.3 (E.D. Mo. 2012).
263
76

its health insurance plan. Hercules, OIH, and Hobby Lobby, for example, all sought
to exclude at least Plan B and Ella from their insurance plans due to their moral
opposition.
264

While business entities can exercise religion because they are persons
within the meaning of the RFRA, policy considerations dictate the conclusion that
not every business entity has the First Amendment right to exercise religion.
Because business entities without any bona fide religious objections to the HHS
mandate would likely try to take advantage of an available exemption, the right to
exercise religion should be limited to business entities owned by individuals
professing adherence to a sincerely held religious belief.
265
Moreover, because the
RFRA cannot be used to force religious exercise on non-adherents, the right to
exercise religion should be limited to smaller sized business entities that primarily
employ individuals with the same religious belief.
266
Finally, because prospective
employees need to be on notice of the entitys religious identity and the courts
need criteria to affirm the sincerity of the owners religious belief, the business
entity must take several steps to hold itself out to the public as having a religious
identity.
267

D. Whose Exercise? Standing Arguments Considered by the Courts

Despite the courts granting injunctions against the HHS mandate in thirty-
three of the forty-seven for-profit challenges, the courts have largely avoided
considering the issue of whether a business entity is a person capable of
exercising religion within the meaning of the RFRA.
268
This is likely because the
courts have not yet constructed a standard by which business entities can exercise
religion that is suitable for use as precedent.
269
Instead, some courts have held that
the business entity has standing to assert its owners RFRA claim.
270
This

264
See supra notes 110, 132, 147-149 and accompanying text.
265
See supra Subsection III.C.2
266
267
268
Melissa Steffan, Move Over, Abortion? Religious Freedom Is the New Battleground for
Personhood, CHRISTIANITY TODAY (Feb. 1, 2013, 3:30 PM),
http://www.christianitytoday.com/ct/2013/february-web-only/contraception-mandate-corporate-
personhood.html?start=1 (noting that courts have avoided the issue of a corporations religious
rights by finding the HHS mandate is not a substantial burden or that the corporation can assert
the owners RFRA rights). See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278,
1296-97 (W.D. Okla. 2012) (holding the HHS mandate is not a substantial burden); Autocam
Corp. v. Sebelius, No. 1:12CV1096, 2012 WL 6845677, at *6 (W.D. Mich. Dec. 24, 2012)
(holding the HHS mandate is not a substantial burden); Conestoga Wood Specialties Corp. v.
Sebelius, No. 126744, 2013 WL 140110, at *14 (E.D. Penn. Jan. 11, 2013) (holding the HHS
mandate is not a substantial burden); Tyndale House Publishers, Inc. v. Sebelius, 904 F.Supp.2d
106, 114 (D.D.C. 2012) (noting that the court declines to address the unresolved question of
whether for-profit corporations can exercise religion within the meaning of the RFRA);
Monaghan v. Sebelius, 916 F.Supp.2d 802, 808 (E.D. Mich. 2012) (The Court takes no position
as to whether DF, as a for-profit business, has an independent right to freely exercise religion.).
269
This note seeks to fill that void.
270
See, e.g., Tyndale House Publishers, Inc. v. Sebelius, 904 F.Supp.2d 106, 114-19 (D.D.C.
2012); Monaghan v. Sebelius, 916 F.Supp.2d 802, 808 (E.D. Mich. 2012).
77

conclusion avoids the issue of whether a business entity itself can exercise religion,
while still allowing the courts to grant the plaintiffs injunctive relief.
271

The owners of a business entity, as individuals, clearly are persons and
have free exercise and RFRA rights.
272
As a result, courts have been considering the
issue of whether a business entity has standing to assert the free exercise and RFRA
rights of its owners, and conversely, whether the owners can assert their RFRA and
free exercise rights through the business entity.
273
If so, then it does not matter if the
business entity itself cannot exercise religion because its owners can. In Monaghan,
for example, the court framed the issue as whether Monaghan, the sole shareholder
and director of DF, may project his personal free exercise rights through DF, even
though the ACA does not, by its terms, require Monaghan to do anything in his
individual capacity.
274
The court found that Monaghan may bring a claim under the
RFRA based on his argument that the mandate requires him to perform an act that is
at odds with his religious beliefs.
275
The court reasoned:
Monaghan asserts that acting to have his company provide such
coverage would cause him to commit a grave sin according to his
religious beliefs. This argument is well-taken, since DF cannot
act (or sin) on its own. Therefore, even though the ACA does not
literally apply to Monaghan, the Court is in no position to declare
that acting through his company to provide certain health care
coverage to his employees does not violate Monaghans religious
beliefs. They are, after all, his religious beliefs.
276

After finding that Monaghan may bring his RFRA claim through his business
entity, the court granted Monaghans motion for a temporary restraining order
finding some likelihood of success on the merits of his RFRA claim.
277
Indeed, if
the owners of a business entity are allowed to assert their RFRA claims through
their business entity, then the question of whether the business entity itself can
exercise religion within the meaning of the RFRA is moot.
278
What is left is a
distinction without a differencethe result for the plaintiff is the same.

271
See, e.g., Tyndale House Publishers, Inc., 904 F.Supp.2d at 114-19; Monaghan, 916 F.Supp.2d
at 808 (Accordingly Monaghan has standing to make his claim under the RFRA. This Court takes
no position as to whether DF, as a for-profit business, has an independent right to freely exercise
religion.).
272
Tyndale House Publishers, Inc., 904 F.Supp.2d at 115.
273
See, e.g., Tyndale House Publishers, Inc., 904 F.Supp.2d at 114-19; Monaghan, 916 F.Supp.2d
at 808.
274
Monaghan, 916 F.Supp.2d 802 at 808 (emphasis added).
275
Id.
276
Id.; see also Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 718 (1981) (finding it
beyond the scope of judicial function and competence for a court to decide whether a party is
correctly understanding his religious doctrine because [c]ourts are not arbiters of scriptural
interpretation).
277
Monaghan, 916 F.Supp.2d at 808, 811.
278
See also Korte v. Sebelius, 528 Fed.Appx. 583, 586 (7th Cir. 2012) (In response, the
government's primary argument is that because K & L Contractors is a secular, for-profit
enterprise, no rights under [the] RFRA are implicated at all. This ignores that Cyril and Jane Korte
are also plaintiffs . . . The contraception mandate applies to K & L Contractors as an employer of
more than 50 employees, and the Kortes would have to violate their religious beliefs to operate
their company in compliance with it.).
78

Additionally, in Tyndale House Publishers, Inc., the court, after declining
to address the unresolved question of whether for-profit corporations can exercise
religion, found that Tyndale had standing to assert the free exercise and the RFRA
claims of its owners.
279
The court, relying on Ninth Circuit precedent and third-
party standing doctrine, reasoned, when the beliefs of a closely-held corporation
and its owners are inseparable, the corporation should be deemed the alter-ego of its
owners for religious purposes, thereby granting the corporation the standing to
assert the free exercise and RFRA rights of its owners.
280
The court found that the
corporation was the alter-ego of its owners because Christian principles, prayer and
activities are pervasive at Tyndale, and the companys ownership structure is
designed to ensure that it never strays from its faith-oriented mission.
281
Finally,
upon allowing Tyndale to assert its owners RFRA claim, the court found a strong
likelihood of success on the merits.
282

Perhaps more courts will adopt these approaches to standing in an effort to
avoid the novel question of whether a business entity itself can exercise religion.
While these standing approaches do not guarantee success on a RFRA claim, as the
plaintiffs must still establish a substantial burden and the government may still be
able to respond with a compelling governmental interest advanced in the least
restrictive means, these approaches do bypass the initial hurdle of whether a
business entity itself can exercise religion.
283

CONCLUSION

Because the HHS mandate went into effect on August 1, 2012, all for-
profit business entities must, absent judicial intervention and resolution, include
coverage of the FDA-approved contraceptives in their health insurance plans upon
renewal.
284
The business entities challenging the HHS mandate need to know, for
business planning purposes, whether they will be subject to the mandate, and
employees need to know whether their health insurance coverage will be affected.
Thus, the courts handling these challenges must quickly make determinations of
constitutional significance, relating to matters of religious freedom, abortion,
contraception, and procreation. Understandably, the courts have been hesitant to
tackle head-on the issue of whether a business entity itself can exercise religion
given the competing interests involved and difficultly in laying down a standard
suitable as precedent.
285
However, there is a way to strike the proper balance

279
Tyndale House Publishers, Inc. v. Sebelius, 904 F.Supp.2d 106, 114-19 (D.D.C. 2012).
280
Id. at *8. See supra note 168.
281
Tyndale House Publishers, Inc., 904 F.Supp.2d at 114. The court also found that Tyndale has
standing to assert its owners free exercise and RFRA rights under the third-party standing
doctrine. Id. at 118. A finding that the corporation is the alter-ego of its owners perhaps opens the
door for piercing the corporate veil, as Judge Kane posited in Newland. See supra note 10 and
accompanying text.
282
Tyndale House Publishers, Inc., 904 F.Supp.2d at 129.
283
Still, it is not yet clear how to reconcile these standing arguments with the Supreme Courts
statement in U.S. v. Lee that [w]hen followers of a particular sect enter into commercial activity as
a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith
are not to be superimposed on the statutory schemes which are binding on others in that activity.
U.S. v. Lee, 455 U.S. 252, 261 (1982).
284
285
79

between all of these competing concerns.
If only business entities that (1) are owned by individuals professing
adherence to a sincerely held religious belief; (2) primarily employ individuals with
the same religious belief; and (3) hold themselves out to the public as adhering to
that religious belief can exercise religion, then the courts can protect religious
liberty, while simultaneously avoiding the most prevalent concerns with allowing
business entities to exercise religion.
286
This solution prevents business entities
without bona fide religious objections from exercising religion, while also
mitigating the concern that businesses will force religious practice on non-
adherents.
287

Finally, while the notion of a business exercising religion does initially
seem strange, the business entities discussed in this note are, in a very real sense,
exercising religion. Secular business entities do not practice prayer in the
boardroom, do not include Religious Purpose statements in their articles, do not
provide religious services for their employees, do not prominently display religious
icons, and certainly do not prioritize religious standards above the entitys
profitability.
288
With this perspective, perhaps business entities already are
exercising religion.

286
See supra Subsections III.C.1-3.
287
See supra Subsections III.C.1-2.
288
See supra Subsections III.C.3.
80

DOMESTIC VIOLENCE ON THE WORLD STAGE:
USING INTERNATIONAL STANDARDS AS A FRAMEWORK FOR CHANGE
IN THE UNITED STATES

Dori Cohen

INTRODUCTION

Domestic violence crosses all geographic landscapes and socioeconomic
classes. In 1989, the United Nations released a report establishing that domestic
violence is a problem in almost every country.
1
For example, roughly ten to fifty
percent of women in fifty countries reported being hit or physically harmed by an
intimate partner at some point in their lives,
2
and up to seventy percent of women
experience violence in their lifetime.
3
Violence against women, particularly by
intimate partners, is now considered a universal phenomenon.
4
This violence is
not just minor; intimate partners commit half of all homicides against women,
5
and
the World Health Organization has estimated that forty percent to seventy percent
of female murder victims in Australia, Canada, Israel, South Africa, and the United
States were killed by their partners.
6
Globally, domestic violence is also the
primary cause of disease and health issues for women.
7

The problem of domestic violence in the United States is just as drastic,
particularly with respect to the effect of these crimes for women.
8
The U.S.
Department of Justice estimates that three women are murdered by their intimate
partners every day.
9
Domestic violence is also one of the major causes of non-fatal

1
BONITA MEYERSFELD, DOMESTIC VIOLENCE AND INTERNATIONAL LAW 19 (2010). See also
Paula Spieler, The Maria da Penha Case and the Inter-American Commission on Human Rights:
Contributions to the Debate on Domestic Violence Against Women in Brazil, 18 IND. J. GLOBAL
LEGAL STUD. 121, 124 (2011) (The United Nations Fourth World Conference on Women, held
in Beijing in 1995, identified VAW [Violence Against Women] as an entrenched problem
requiring immediate action.).
2
Spieler, supra note 1, at 124.
3
Id. at 126.
4
U.N. DEPT OF ECON. & SOC. AFFAIRS, THE WORLDS WOMEN 2010: TRENDS AND STATISTICS,
U.N. Sales No.E.10.XVII.11, at 127 (2010); See also Spieler, supra note 1, at 125.
5
Spieler, supra note 1, at 125 (based on a global survey).
6
Id.
7
MEYERSFELD, supra note 1, at 19.
8
While domestic violence affects various sociological and cultural groups in the United States, the
most pervasive form of intimate partner violence is that of men battering their female partners.
Although outside the scope of this article, it is important to acknowledge that domestic violence is
unquestionably an issue for people in diverse communities, reaching beyond heterosexual
relationships. Intimate partner violence occurs at the same rates in both heterosexual relationships
and same-sex relationships and the Center for Disease Control has estimated that 1 in 7 men
experience severe physical violence by an intimate partner. CTR. FOR DISEASE CONTROL (CDC),
NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY FACT SHEET (2010) [hereinafter
CDC FACT SHEET], available at http://www.cdc.gov/ViolencePrevention/pdf/NISVS_FactSheet-
a.pdf. Moreover, currently there are no federal laws that protect men from domestic violence or
that specifically address the LGBT community. See Jason Palmer, Eleventh Annual Review of
Gender and Sexuality Law: Criminal Law Chapter: Domestic Violence, 11 GEO. J. GENDER & L.
97, 160-62 (2010).
9
Press Release, Senator Joseph R. Biden, Jr., Biden, Hatch, and Specter Usher Violence Against
Women Act Into the 21sts Century with VAWA 2005 (June 8, 2005) [hereinafter Biden Press
81

injury to women in the United States, accounting for more injuries to women than
car accidents, rapes, and muggings combined.
10
The Center for Disease Control
(CDC) notes that there are considerable short and long term effects, involving injury
and symptoms relating to Post-Traumatic Stress Disorder, in 81% of women who
experience rape, stalking or physical violence by an intimate partner.
11
Other
symptoms include frequent headaches, chronic pain, difficulty with sleeping,
activity limitations, poor physical health and poor mental health as a result of
intimate partner violence.
12
Women who experience domestic violence are also
more likely to report having asthma, diabetes, and irritable bowel syndrome when
compared to women who did not experience such violence.
13
While both male and
female victims suffer from these symptoms, there was a clear disparate impact for
women in this study. Women face more injury
14
and need medical attention
15
at
higher rates than men.
16

In addition to the physical impact of domestic violence, costs to society as
a result of intimate partner violence can be felt in tangible property losses,
healthcare expenses, use of law enforcement resources, and lost productivity at
work.
17
In the United States between five and ten billion dollars are spent on health
care, criminal justice, and other social costs of domestic violence.
18
It is estimated
that the United States spends $16.4 billion dollars in victimization costs
associated with domestic violence.
19

The regularity of gender-motivated violence and the extent of damage that
women suffer indicate that the United States is failing to serve and protect women
in this country. Although domestic attempts at combating violence against women
have progressed since the days of courts condoning the chastis[ing] of women,
20

the United States legal system has fallen short in comparison with neighboring
countries that have signed international treaties prohibiting domestic violence.
21

The current domestic violence policy in the United States predominantly
exists in the form of the Violence Against Women Act (VAWA)
22
and a patchwork
variety of state laws enacted by state legislatures, with varying effectiveness. In

Release], available at
http://www.ncdsv.org/images/BidenHatchSpecterUsherVAWA21stCentury.pdf.
10
Palmer, supra note 8, at 98.
11
CDC FACT SHEET, supra note 8.
12
Id.
13
Id.
14
Id. (42% of women compared with 14% of men).
15
Id. (22% of women compared with 6% of men).
16
Not only is domestic violence more prevalent for women, but the types and consequences of
violence are also more drastic. In a 2010 national survey, the CDC noted that [f]emale victims of
intimate partner violence experienced different patterns of violence than male victims, with
women experiencing multiple forms of these types of violence including rape, stalking, and
physical violence while men overwhelmingly experienced only physical violence. CDC FACT
SHEET, supra note 8 (explaining that 92% of men experienced only physical violence compared
with 57% of women that experienced only physical violence).
17
MICHELLE L. MELOY & SUSAN L. MILLER, THE VICTIMIZATION OF WOMEN: LAW, POLICIES,
AND POLITICS 159 (2011).
18
Max D. Siegel, Surviving Castle Rock: The Human Rights of Domestic Violence, 18 CARDOZO
J.L. & GENDER 727, 747 (2012).
19
MELOY & MILLER, supra note 17, at 159.
20
Palmer, supra note 8, at 101 (footnote omitted).
21
See infra Part II.B and II.C.i.
22
Violence Against Women Act, 42 U.S.C. 1392514045 (2012).
82

1994 and 1996, Congress also amended the Gun Control Act to include provisions
protecting victims of domestic violence, making it a federal crime in certain
situations for domestic abusers to possess guns.
23
In addition to VAWA and the Gun
Control Act, Congress has passed the Family Violence Prevention and Services Act
(FVPSA).
24
The federal funding that is provided through FVPSA helps support
domestic violence shelters and victims services programs.
25

Existing federal and state efforts are insufficient to greatly reduce the
problem of domestic violence in the United States. The fact that the United States is
considered a leader
26
in terms of providing rights for its citizens is belied by the lack
of care and protections the United States actually offers to victims of domestic
violence. A better standard, governed by human rights organizations and
international regional systems, can serve as a guide to improve the United States
policy on domestic violence. In the North- and South-American region,
humanitarian governing bodies like the Inter-America Commission on Human
Rights (IACHR) have issued significant decisions and recommendations to
countries that have failed to address gender-based violence in their territories.
27

These decisions serve as a useful framework for how to implement international
humanitarian standards regarding domestic violence.
While others have argued generally that international law should play a
broader role in the United States domestic violence policy,
28
this Article offers a
specific framework for that role to take shape: the adoption of the Inter-American
Convention on the Prevention, Punishment and Eradication of Violence Against
Women (Convention of Belm do Par).
29
In 1994, the Organization of American

23
U.S. DEPT OF JUSTICE, Federal Domestic Violence Laws,
http://www.justice.gov/usao/gan/documents/federallaws.pdf (last visited Jan. 13, 2013); See also F.
Stephen Bridges, Kimberly M. Tatum & Julie C. Junselman, Domestic Violence Statues and Rates
of Intimate Partner and Family Homicide: A Research Note, 19 CRIM. JUST. POLY REV. 117, 119
(2008) (VAWA makes it a federal offense to possess a gun while subject to a domestic violence
protection order.).
24
Family Violence Prevention and Services Act, 42 U.S.C. 1040114 (2012).
25
See Laws on Violence Against Women, Womens Health, http://womenshealth.gov/violence-
against-women/laws-on-violence-against-women (last updated May 18, 2011) (Programs funded
through FVPSA provide shelter and related help. They also offer violence prevention activities and
try to improve how service agencies work together in communities.); see also NATL NETWORK
TO END DOMESTIC VIOLENCE (NNEDV), Family Violence Prevention & Services Act,
http://www.nnedv.org/policy/issues/fvpsa.html (last visited Sept. 25, 2013) (FVPSA is the only
federal funding source dedicated directly to domestic violence shelters and programs. After
FVPSA expired in 2008, NNEDV lead the effort with domestic violence advocates to reauthorize
this vital legislation[.] Congress passed a bill to reauthorize FVPSA as part of the Child Abuse
Prevention and Treatment Act (CAPTA) reauthorization through fiscal year 2015 on November 10,
2010. The President signed the bill into law on December 20, 2010.).
26
MARY L. DUDZIAK, COLD WAR CIVIL WAR: RACE AND THE IMAGE OF AMERICAN DEMOCRACY
2 (2011).
27
See infra Part II.C.
28
See Elizabeth M. Schneider, Caroline Bettinger-Lopez, Julie Goldscheid, Sandra S. Park, Ejim
Dike, Lisalyn R. Jacobs, Margaret Drew & Mary Haviland, Article: Implementing the Inter-
American Commission on Human Rights Domestic-Violence Ruling, 46 CLEARINGHOUSE REV.
113, 11617 (2012); see also Averil Andrews & Jenny Khavinson, From International to Domestic
Approaches: Battling DV in the United States, 17 DOMESTIC VIOLENCE REP., no. 2, Dec. Jan.
2012, at 25. Cf. DUDZIAK, supra note 26, at 17 (With regards to the civil rights movement in
America in the 1960s and 1970s, Dudziak has argued that [a]n event that is local is at the same
time international. Foreign developments help drive domestic politics and policy.).
29
Inter-American Convention for the Prevention, Punishment, and Eradication of Violence Against
83

States (OAS) adopted the Convention of Belm do Par and it was entered into
force in 1995.
30
This Convention is the only regional treaty, and until 2011 the only
international treaty,
31
that specifically addresses violence against women.
32
As an
important instrument of the Inter-American system, the Convention of Belm do
Par has helped to shape the legal standards relating to violence against women in
the Americas.
33
Without altering the current approach of the U.S. federal
government (to abstain from legislating local issues
34
or adopting treaty provisions
that conflict with existing U.S. international policy),
35
the Convention has the ability
to change the standards of how the United States protects and prevents violence
against women. For these reasons, the United States should join the majority of
OAS-member states and ratify the Convention of Belm do Par.
36

Part I of this Article analyzes the United States attempts to address the
issue of domestic violence. Ultimately these reforms have proven to have only a
marginal effect in reducing the frequency and severity of violence against women.
Part II discusses international human rights standards relating to domestic violence
and how international and regional bodies like the IACHR are tackling the issue. As
the IACHR has noted, the administration of justice is the first line of defense in the
protection of human rights domestically, including womens rights. For that reason,
the IACHRs consideration of the impact of the standards of the interAmerican
system linked to gender issues begins with the analysis of judicial decisions.
37

Thus, significant decisions of the IACHR that focus on violence against women will
be discussed. This Article concludes in Part III with suggestions for the successful
ratification of the Convention in the United States and the positive effect it will have
on domestic violence, on both a national and a local level.

Women, opened for signature, June 9, 1995, 33 I.L.M. 1535 (entered into force Mar. 5, 1995)
[hereinafter Convention of Belm do Par].
30
Id.
31
In 2011, the Council of Europe adopted the Convention on Preventing and Combating Violence
Against Women and Domestic Violence. See COMM. OF MINISTERS, Council of Europe
Convention on Preventing and Combating Violence Against Women and Domestic Violence,
COUNCIL EUR. (Apr. 7, 2011), available at
http://www.conventions.coe.int/Treaty/EN/Treaties/Html/210.htm.
32
See e.g., Convention of Belm do Par, supra note 29, art. 3 (Every woman has the right to be
free from violence in both the public and private spheres.).
33
Organization of American States, Inter-American Commission on Human Rights [IACHR],
Legal Standards Related to Gender Equality and Womens Rights in the Inter-American Human
Rights System: Development and Application, 16, OEA/Ser.L/V/II.143 doc. 60 (Nov. 3, 2011)
[hereinafter Legal Standards].
34
See e.g., Valorie K. Vojdik, Conceptualizing Intimate Violence and Gender Equality: A
Comparative Approach, 31 FORDHAM INT'L L.J. 487, 511 (2008) (Rather than conceptualize
domestic violence as impairing women's equality or civil rights, the Supreme Court has
categorized domestic violence in gender-neutral terms, i.e. as a violent crime that implicates local
concerns that do not justify federal constitutional protection.) (internal quotation marks omitted).
35
See infra Part III.B.
36
Currently, thirty-two out of thirty-four OAS-member states have ratified the Convention. Basic
Documents in the Inter-American System, ORGANIZATION OF AMERICAN STATES,
http://www.oas.org/juridico/english/sigs/a-61.html (last visited Mar. 26, 2014).
37
Legal Standards, supra note 33, 8.
84

I. SHORTCOMINGS OF THE CURRENT U.S. APPROACH

This Part begins with a discussion of the steps that the United States has
taken to address the problem of violence against women. There are two fundamental
approaches: federal legislation that provides funding streams to support state efforts,
and state laws that focus on punishing batterers through mandatory arrest provisions
and protection orders. While VAWA brought national attention to the issue of
domestic violence and offered a guide for statesmany of which previously had
little legislation on the issuethere has not been effective implementation of these
laws. This is a failure in the United States approach to domestic violence. The
concern here is not that the federal government of the United States is
unconstitutionally legislating local crimes
38
but that the United States has failed to
maintain basic fundamental humanitarian standards.
39

Section A discusses the failures of federal attempts to address domestic
violence. Section B examines state efforts, the predominant method the United
States uses to addresses the issue. Neither approach provides adequate protections
for women.

A. FEDERAL LEGISLATION ON DOMESTIC VIOLENCE

The United States current attempts to address domestic violence, in the
wake of Supreme Court interpretations of VAWA and inadequate national and state
legislation, fall short of having a significant impact on ending intimate partner
violence. First adopted in 1994,
40
in part as a response to public outcry from victims
frustrated with the criminal justice systems handling of domestic violence cases,
41

VAWA represented an important step by the U.S. Congress to review the legal
resources available to victims of violence and to propose changes to the current
federal landscape. VAWA was the first federal statute aimed directly at combating
gender-related violence.
42
The U.S. Office of Management and Budget reported
that at the time of its adoption, VAWA was among the most successful Crime Act
programs.
43
The 1994 legislation made marital rape illegal in every state and
provided over $3.8 billion to various states to train and support police, lawyers,
judges, nurses, shelter directors and advocates to end domestic violence and sexual
assault, causing a near 50% drop in domestic violence according to some
estimates.
44
Importantly, VAWA also helped frame the issue of violence against
women in a way that supported victims rights. As a result of this legislation, many

38
See Vojdik, supra note 34, at 504 (noting that the Supreme Court has held that specific remedies
provided in VAWA that involve federal solutions of state issues are unconstitutional).
39
MEYERSFELD, supra note 1, at 3 (acknowledging that domestic violence violates international
human rights norms).
40
VAWA has since been reauthorized with its most recent reauthorization in 2013.
41
42
43
44
Biden Press Release, supra note 9; see also, Neal Miller, 2004 Domestic Violence: A Review of
State Legislation Defining Police and Prosecution Duties and Powers, INST. For L. AND JUSTICE 8
(2004) ([M]ost states have now abolished the marital defense. However, only 12 states and the
District of Columbia have explicitly totally abolished the marital defense to charges of sexual
assault.).
85

federal courts began to view cases from the perspective of the victims gender and
to shift the discussion from victim blaming to criticizing the abusers actions.
45

However, the primary function and effect of VAWA was to place
responsibility for legal change on the shoulders of the states. VAWA has not had a
powerful impact on victims of violence because the federal approach of deferring to
the state has, in reality, meant a lack of implementation on the local level.

1. Goals and Major Achievements of VAWA

One of the major aims of VAWA was to facilitate funding to support local
measures to address domestic violence.
46
Rather than launch new federal legislation
that would have had a broad impact, few of VAWAs provisions created new
statutory law in the arena of domestic violence.
47
Instead, VAWA focused on
increasing the research efforts of most jurisdictions.
48
Subsequently, over 1.6 billion
dollars in federal funding has gone to VAWA-related research programs.
49
For the
first time, a federal initiative encouraged research in the area of domestic violence,
making the study of violence against women a mainstream and legitimate research
agenda for scholars.
50
This funding also correlated with reducing violence against
women in some areas: In a 2009 study on state and local jurisdictions receiving
funding from VAWA, it was noted that VAWA dollars are associated with
meaningful reductions in the number of rapes and aggravated assault, but not with
other forms of serious violence such as homicides.
51

There were also substantial improvements for victims and victims services
after VAWAs adoption. The Act established the Violence Against Women Office
in the Department of Justice and created much reform in the area of training for law
enforcement agents.
52
Among the most deeply funded aspects of VAWA is the
STOP (Services, Training, Officers, and Prosecutors) program.
53
The focus of the
STOP program is to improve community-based victim services and to assist law
enforcement and prosecutors in developing training programs, new polices, and
protocols related to domestic violence, sexual assault, and stalking.
54
Programs
such as STOP have helped reduce the instances, but not the seriousness, of domestic
violence in the United States.
55

45
46
Id.
47
Id. at 103 (2010). But see MELOY & MILLER, supra note 17, at 160 (acknowledging that VAWA
encouraged the development of state legislation).
48
49
50
Id. at 163.
51
Id.; see also Bridges ET AL., supra note 23, at 118.
52
Palmer, supra note 8, at 108. However, scholars argued that the 1994 Act did little to help
domestic violence victims escape their abusers. Id. Other critiques have noted that it is often
difficult for victims to leave their abusers because of economic pressures. Reporting the abuse may
present economic problems if the batterer is the sole or primary wage earner in the family; if the
batterer is arrested, there will no longer be family income. Id.
53
MELOY & MILLER, supra note 17, at 160 (These grants provide funding to local communities
and criminal justice agencies, while other VAWA-sponsored initiates targeted federal-level issues,
such as preventing interstate violations of restraining orders or creating a national domestic
violence hotline.).
54
Id.
55
86

The Violence Against Women Act of 2000 also mandated that each state
give full faith and credit to the criminal sanctions imposed by any other state,
including protective orders, which made it easier for a victim to escape a batterer
when crossing state lines.
56
Given that battered women are most at risk when they
attempt to leave their batterers,
57
this provision represents an important step in
addressing violence against women.

2. Inadequacies of VAWA

Although VAWA represented a noteworthy development in domestic law
relating to intimate partner violence, this legislations provisions have not led to
many practical changes or real-world improvements for victims of violence.
Scholars have noted that the current federal and state measures arent enough to
combat domestic violence, finding that [f]ederal and state legislative and
programmatic measures, such as VAWA and its numerous associated programs,
have . . . fallen short of adequately addressing domestic violence or providing
sufficient legal remedies for victims.
58
VAWA has failed to effect these changes
for two reasons: actions by the Supreme Court have undercut significant provisions
in the Act, and the legislations focus on violence that has already been committed
distracts from the states obligation
59
to prevent such acts of violence from
occurring in the first place.
A significant blow to the goal of VAWA occurred when the Supreme
Court struck down the civil rights remedy that the Act established.
60
Prior to
VAWA, domestic violence had never been designated as a gender-motivated civil
rights violation[].
61
A victims only recourse was to rely on local prosecutors to
pursue criminal sanctions.
62
The civil rights remedy allowed a victim of gender-
motivated violence to bring a cause of action against his or her batterer and was
viewed as one of the most important provisions of VAWA. However, in two
significant decisions, United States v. Morrison
63
and Castle Rock v. Gonzales,
64
the
Supreme Court invalidated the civil rights remedy in VAWA and other meaningful
options for redress available to victims of domestic violence.
While the Supreme Court did not oppose the goal of the legislation per
se, the Justices took issue with the assumption of federal government power,
stressing that civil remedies were a more appropriate concern for the states.
65
In
Morrison, the Court ruled that the civil rights remedy in VAWA was an

56
Id. at 112.
57
Id. at 113.
58
Id. at 100.
59
See Elizabeth A.H. Abi-Mershed, Due Diligence and the Fight against Gender-Based Violence
in the Inter-American System, in DUE DILIGENCE AND ITS APPLICATION TO PROTECT WOMEN
FROM VIOLENCE 127, 127 (Carin Benninger-Budel ed., 2008) ([A] state is clearly responsible for
the acts and omissions of its agents.).
60
42 U.S.C.A. 13981; See also MELOY & MILLER, supra note 17, at 126 (noting that the civil
rights remedy was controversial at its adoption because it specified for the first time that sex
crimes were hate crimes).
61
62
Id.
63
United States v. Morrison, 529 U.S. 598 (2000).
64
Castle Rock v. Gonzales, 545 U.S. 748 (2005).
65
MELOY & MILLER, supra note 17, at 145-46.
87

unconstitutional use of Congressional power.
66
The Court stated that there must be a
distinction between what is truly national and what is truly local, holding that
even violence that has an aggregate effect on the entire country does not fall under
the purview of Congresss Commerce Clause power or the Equal Protection Clause
of the Fourteenth Amendment.
67
Five years later, in Castle Rock, the Supreme Court
held that individuals did not have a property interest in the mandatory enforcement
of protective orders.
68
The Court found that even though the language of a
mandatory arrest provision in an order of protection included the words use every
reasonable means to enforce a restraining order, the Colorado legislature did not
intend to take away police discretion in handling domestic violence issues.
69

Morrison and Castle Rock reveal that even after significant Congressional attempts
to address the issue of domestic violence at the national level, the Supreme Court
will continue to view this problem as a state issue.
The reauthorization process of the most recent version of VAWA further
highlights the lack of unified national support for effective remedies for victims of
domestic violence and the predominant view in the United States that violence
against women is more suited to state-level remedies. After heated debate that lasted
over a year after the expiration of the Act,
70
the Senate and House finally passed
VAWA in February 2013.
71
Republican leader Senator Marco Rubio argued that he
could not support a bill that increased funding for sexual assault programs because
theres no evidence to suggest this shift will result in a greater number of
convictions.
72
Consistent with the predominant view on violence against women,
Senator Rubios concern was with prosecuting assailants as opposed to preventing
such violence. Though Senator Rubio did state that he would support the existing
version of VAWA that emphasizes programs centered on law enforcement and
increasing prosecutions, he argued that state-based coalitions that understand local
needs best should be responsible for addressing violence against women.
73
In
reality, however, placing the responsibility on the state has done little to curb
domestic violence.

66
Morrison, 529 U.S. at 619.
67
Id.
68
Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005).
69
Id. at 761.
70
THE ATLANTIC, Violence Against Women Act Debacle: Why Congress Should Be More Diverse,
(Jan. 3, 2013, 10:04 AM), http://www.theatlantic.com/sexes/archive/2013/01/violence-against-
women-act-debacle-why-congress-should-be-more-diverse/266784.
71
See Halimah Abdullah, Domestic Violence Bill Vote Critical Test of More Inclusive GOP, CNN
(Feb. 12, 2013), http://www.cnn.com/2013/02/12/politics/violence-against-women/index.html
(After months of debate, the Senate finally passed the measure on [February 12], 78-22, and sent
it to the House of Representatives, where proponents expect[ed] a fight that would test Republican
efforts to embrace inclusiveness.); See also Rosalind S. Helderman, Violence Against Women Act
passed by House, sent to Obama for signature, WASH. POST (Feb. 28, 2013),
http://www.washingtonpost.com/politics/violence-against-women-act-passed-by-house-sent-to-
obama-for-signature/2013/02/28/c540f058-81b4-11e2-b99e-6baf4ebe42df_story.html. President
Obama signed the Act into law on March 7, 2013. Julia Dahl, President Obama Signs Violence
Against Women Act, CBS NEWS (March 7, 2013, 12:05 PM), http://www.cbsnews.com/8301-
504083_162-57573048-504083/president-obama-signs-violence-against-women-act.
72
Marco Rubio, Statement on my Vote Against the Violence Against Women Act (Feb. 12, 2013),
http://www.rubio.senate.gov/public/index.cfm/2013/2/statement-on-my-vote-against-the-violence-
against-women-act.
73
Id.
88

B. State Attempts to Address Domestic Violence

VAWA was in part a response to the scarcity of federal or state actions
dealing seriously with intimate partner violence.
74
After the passage of VAWA, a
multitude of new state laws emerged. The effectiveness of these laws is diminished
by two inherent flaws 1) police discretion to enforce/not enforce the provisions and,
2) the focus on punishing past acts rather than preventing future harm to women.
State efforts to rely on police enforcement and to criminalize and punish violent
behavior do little to address the motivations behind gender-based violence, leaving
a solution to domestic violence perpetually out of reach.

1. State Laws Undercut VAWAs Effectiveness

The predominant focus of state laws on domestic violence is on
prosecuting batterers, while keeping intact the essential element of police discretion
that had existed prior to these new laws. Statistics show that while the prevalence of
some acts of violence has decreased since the passage of VAWA, the rate of overall
domestic violence-related homicides has not shown marked improvement.
75

Moreover, state inaction that grants the police discretionary authority undercuts the
enforcement of these new statutes.
76

Though prosecuting batterers under common law crimes has long been an
available remedy, before VAWA few states incorporated specialized statutes that
focused directly on intimate partner violence.
77
With the additional support of
funding initiatives and the renewed attention to domestic violence brought on by the
passage of VAWA, many states that had not previously included any legislation on
domestic violence emerged with new laws governing the issue.
78
Most of these laws
made it easier to arrest and prosecute batterers, due in part to the lower burden for
police officers to arrest alleged abusers.
79

However, often an arrest for a violation is left up to the discretion of the
police officer, even if the state has specified that arrest is the preferred response.
80

In an effort to reduce the amount of police discretion involved in domestic violence
cases, some states have instituted mandatory arrest provisions.
81
But, as the Castle
Rock decision makes clear, even these attempts might not prove effective because it
is still within the officers discretion to determine the relevant facts of the incident

74
Miller, supra note 44, at 3 n. 11 (calling the enactment of VAWA a new recognition of the
seriousness of domestic violence).
75
Bridges ET AL., supra note 23, at 118.
76
Id. at 127.
77
Miller, supra note 44, at 7 (Common law crimes that are often invoked in domestic violence
incidents include homicide offenses, assault and battery [and] sexual assault . . . [n]eedless to say,
every state provides criminal penalties for homicide and assault and battery.).
78
Id. at 1 (Between 1997 and 2003 there were over 700 new domestic violence-related
enactments, including both amendments of old laws and enactment of new laws, such as the
creation of a new crime of domestic violence in 38 states.). See also, Bridges ET AL., supra note
23, at 117 ([F]rom 1997 to 2003, state-level legislatures passed over 700 statutes related to
domestic violence.).
79
Miller, supra note 44, at 4 ([E]very state now permits warrantless arrests in misdemeanor
domestic violence casessubject to a police officers determination that probable cause exists to
believe domestic violence occurred.).
80
Id. at 28-29.
81
Id. at 32.
89

before concluding that the event authorized an arrest.
82
While there has been a
downward trend in the rate of intimate partner homicides since the passage of
VAWA and other state reforms, the severity of domestic violence remains a
significant public health and criminal justice problem . . . [with] an average of 3.5
people killed by intimate partners everyday in this country.
83
Moreover, intimate
partners commit about one in three female homicides.
84
Importantly, the most
significant decreases in the intimate partner homicide rates have been for male
victimizations,
85
indicating that while domestic legislation might have an effect on
homicides, these laws are not reaching their intended target of reducing violence
against women.
Another important development in state domestic violence legislation was
to include criminal sanctions for violating a court order of protection, or civil
protection order (CPO).
86
In state courts, CPOs are increasingly important as
survivors of domestic violence are almost entirely reliant on [them]. This reliance
can be problematic because some judicial decisions have undercut the protective
capacity of CPOs.
87
Despite the fact that many state legislatures have established
mandatory arrest provisions in CPOs
88
and organized specialized domestic violence
trainings for police officers, state judges often choose to defer to police officers in
deciding when to enforce an order, and many officers still see domestic violence as
a personal matter.
89
Not only does this restrict the efforts of women who are
attempting to leave their batterers, it effectively keeps all mandatory arrests
provisions from having the full force that state legislatures intended. Further,
mandatory arrest provisions may precipitate violence between domestic partners,
and thus might not be the desired remedy to combat violence against women.
90

While the availability of protective orders in state courts represents a
significant step to empower women who are victims of domestic violence, the lack
of enforcement due to police discretion that often accompanies these orders makes
this protection tenuous. Moreover, following the decision in Castle Rock, police
discretion has largely removed the agency that VAWA and various state laws
sought to establish for victims of domestic violence.

82
See Vojdik, supra note 34, at 508 (explaining that in the case of Castle Rock v. Gonzales, the
Supreme Court held that the Colorado statute did not create a truly mandatory duty to enforce the
restraining order. Despite the use of the word shall in the statute, the majority held that this
seemingly mandatory language did not override a well-established tradition of police discretion in
enforcing criminal statutes, even those that seemed mandatory. Given this tradition of police
discretion, the Colorado legislature had not adequately indicated that it intended its statute to be a
true mandate of police action, despite having used the word shall in the statute.) (internal
quotation marks omitted).
83
Bridges ET AL., supra note 23, at 118.
84
Id.
85
Id.
86
Miller, supra note 44, at 2324 (Every state provides for a civil court order of protection
against domestic violence. Typically, these orders enjoin any further violence and, where the
parties are not residing together, further mandate that the abuser stay away from the victim.).
87
88
Miller, supra note 44, at 29.
89
90
See Lenahan v. United States, Case No. 12.626, Inter-Am. Commn H.R., Report No. 80/11,
OEA/Ser. L/V/II.111 doc. 20 rev. 95 (2011) (Empirical research presented to the Commission
also confirms that in order to regain control over departing spouses and children, batterers will
escalate violence after the battered spouse attempts to separate from her abuser.); see also Palmer,
supra note 8, at 11213.
90

2. Domestic Laws Focus on Past Actions Instead of Prevention

A second flaw in most state domestic violence laws is their focus on
prosecuting batterers,
91
as opposed to preventing future harm to women. In a 2003
study of variations in state criminal domestic violence statutes, Neal Miller noted
that increasingly states made it a felony to repeatedly violate a domestic violence
statute, whereas before domestic assault had only been chargeable as a
misdemeanor.
92
Additionally, the development of incident reports after the
occurrence of a domestic assault or battery has served as a check on police officers
who fail to make an arrest in any given confrontation.
93
This emphasis on state
legislation and arrests had special importance for repeat offenders, but did little to
stop the initial occurrence of violence. Ultimately, Miller found that state laws
criminalizing domestic violence are largely a hodge podge of differing provisions
and that while [d]ifferent states do different things in different ways . . . it remains
troubling that problems in responding to domestic violence that are common in
most, if not all, states are not universally addressed by the states.
94
Furthermore,
the attempt to attend to domestic violence by way of an avalanche of new laws
passed has allowed many states to avoid tackling the issue of how to prevent
domestic violence head on.
95
It is evident that there has been little effort by state
legislatures to examine relevant research and to determine what works before
passing new legislation.
96

The advent of new laws was a progressive step for most states; however,
the existence of these laws means little if they arent implemented. VAWA helped
kick-start the movement to reform existing state laws on violence against women.
More is needed to produce the sweeping reform that was promised after the passage
of the Act. In the two decades following the enactment of VAWA, states have had
laws on the books that said that domestic violence is criminal behavior. But they did
little to enforce these laws, in direct contradiction of the signal that Congress
wanted states to enforce laws against domestic violence after the adoption of the
1994 Violence Against Women Act.
97
Research indicates that, overall, state laws
on domestic violence were not related to [reductions in] intimate partner and family
homicide rates by state.
98
The presence of aggressive statutes alone, the chief
means by which state legislatures and the federal government have attempted to
address the issue of intimate partner violence, has not significantly reduced the rates

91
92
Id. at 1516.
93
Id. at 35.
94
Id. at 5758. But see id. at 45 (noting that these new law did have the positive effect of
widening the criminal justice net, even though local agencies tended to target the most serious or
dangerous cases.).
95
Bridges ET AL., supra note 23, at 118 (internal quotation marks omitted). See also, id. at 127
(finding that although there has been an increase in the number of states adopting the various
more punitive domestic violence statutes, overall none of the specific statutory categories appears
to be related.).
96
Id. at 118 (citation omitted).
97
98
Bridges ET AL., supra note 23, at 117 (noting that there are two exceptions to this finding:
significant inverse correlations were found between family homicide and the average of family
homicide and intimate partner homicide rates and states prohibiting firearm possession during a
restraining order.).
91

of homicides in domestic violence cases.
99
In addition, there appears to be little
evidence that state laws translate to an overall drop in rates of domestic violence.
100

Further, framing gender-based violence as a local issue, even one whose
clear aggregate effect on the United States is insufficient for Congressional
regulation,
101
contributes to the misperception of domestic violence as isolated
instances.
102
The problem with the Courts reasoning in cases like Morrison and
Castle Rock is that it divest[s] violence against women of its systemic character,
and belies a common view that claims of gender-based violence are more anecdotal
than structural, more idiosyncratic than institutional.
103
Without a focus on the
sources of this type of violence, including the states role in condoning such
violence, the pattern of domestic abuse cant possibly be adequately addressed.
Critics of VAWA have noted that there was little attention directed toward
preventing violence against women in the first place because the focus tended to be
on offenders who have already committed crimes against women.
104
Such an
approach serves to assist individual victims, but it does not speak to the greater
problem of gender-based violence that is prevalent in the United States.
VAWA and the various state statutes specifically addressing domestic
violence represent significant efforts in providing improved resources to states and
victims of domestic violence. But more is needed: federal causes of action, as
opposed to purely local measures, must provide the necessary recourse for women
to seek redress for domestic violence. Though levels of violence have dropped
since the implementation of VAWA,
105
the goal of the United States to adequately
address the issue of gender-motivated violence has not been met. In addition,
something beyond federal legislation that mainly focuses on funding state and local
programs is needed to stop the cycle of abuse in the United States. If states are held
accountable, there is a greater chance that laws will be enforced, and that police
who choose to disregard these laws will be held responsible.
Given the failures of federal and state legislation to stem the tide of
domestic violence, the United States should adopt international standards, most
specifically those outlined in the Convention of Belm do Par, to combat the issue
of violence against women. The next section explains how enhancing the federal
governments role can increase the implementation of domestic violence laws and
the accompanying rights associated with such policies.

99
Id. at 127 (The authors tested whether the presence of these aggressive statutes might be
correlated with lower rates of intimate partner or family homicide rates, but findings suggest no
correlation between these laws and the intimate partner and family homicide rates with one
[moderate] exception [which was limiting firearm availability].).
100
Id. at 129 ([D]espite the increase in states adopting domestic violence provisions over the past
20 years, the present study identifies only one association [restricting firearm possession for
offenders with restraining orders] between state laws on domestic violence and rates of domestic
violence.).
101
United States v. Morrison, 529 U.S. 598, 619 (1994).
102
103
Deborah M. Weissman, Gender-Based Violence as Judicial Anomaly: Between The Truly
National and the Truly Local, 42 B.C. L. REV 1081, 1083 (2001).
104
MELOY & MILLER, supra note 17, at 162 (2011) (based on a National Institute of Justice
research project on the overall effect of VAWA-supported programs).
105
SHANNAN CATALANO, U.S. DEPT OF JUSTICE, SPECIAL REPORT ON INTIMATE PARTNER
VIOLENCE, 19932010, available at http://www.bjs.gov/content/pub/pdf/ipv9310.pdf (finding that
[f]rom 1994 to 2010, the overall rate of intimate partner violence in the United States declined by
64%, from 9.8 victimizations per 1,000 persons age 12 or older to 3.6 per 1,000.).
92

II. THE ROLE OF INTERNATIONAL INSTRUMENTS IN COMBATING DOMESTIC
VIOLENCE

Domestic violence has become a source of universal concern, and most
international bodies now consider violence against women to be a human rights
violation.
106
International response to domestic violence has taken many forms,
from UN Documents to regional instruments. Globally, [i]nternational bodies of
varying degrees of authoritative status have produced a multitude of resolutions,
declarations, studies, statements and reports on the subject of domestic violence and
violence against women.
107
For example, in 1990 the United Nations General
Assembly adopted General Resolution 45/114, which specifically addressed
domestic violence.
108
This report indicated the need for a global response to
violence against women and urged states to adopt and implement multidisciplinary
policies to prevent domestic violence, protect its victims and provide appropriate
treatment for offenders.
109
This resolution recognized the pandemic nature of
domestic violence and focused attention on the importance of cooperation among
nations to develop ways of addressing violence against women.
110

In addition to the 1990 resolution, the United Nations has also developed
international treaties like the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) to address gender discrimination.
111

CEDAW is among the most significant treaties addressing womens rights; it has
been called the Bill of Rights for women.
112
CEDAW places the protection of
womens rights in both the public and private sphere, making women equal within
the family unit.
113
This treaty, however, does not include a provision that
specifically addresses violence against women,
114
and the number of reservations
placed on the most significant provisions of CEDAW is exceptionally high, making
the treaty less effective.
115
In addition, there are problems with enforcing the follow-
up mechanisms in CEDAW and ensuring that each ratifying state is effectively
implementing the treaty domestically.
116

106
107
Id. at 16.
108
Id. at 20 (General Resolution 45/114 on domestic violence noted the serious lack of
information and research on domestic violence globally and the need for exchange of information
on ways of dealing with this problem.).
109
Id.
110
Id.
111
Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979,
1249 U.N.T.S. 20378 (entered into force Sept. 3, 1981). See also MEYERSFELD, supra note 1, at
20.
112
113
CARIN BENNINGER-BUDEL, DUE DILIGENCE AND ITS APPLICATION TO PROTECT WOMEN FROM
VIOLENCE 6 (2008).
114
MEYERSFELD, supra note 1, at 56. But see id. at 20 (In 1992 the CEDAW Committee
incorporated violence against women into its jurisprudence with the adoption of general
Recommendation 19, which confirmed expressly that domestic violence impedes gender equality
and that the full implementation of the Convention require[s] states to take positive measures to
eliminate all forms of violence against women.).
115
Id. at 56.
116
RONAGH J.A. MCQUIGG, INTERNATIONAL HUMAN RIGHTS LAW AND DOMESTIC VIOLENCE:
THE EFFECTIVENESS OF INTERNATIONAL HUMAN RIGHTS LAW 12 (2011). States that are party to
this Convention are required to send a report to the CEDAW Committee contain[ing] information
on the prevalence of violence against women, and the legal, protective and preventive measures
93

Offering more comprehensive and effective protections for victims of
domestic violence than CEDAW, the Convention of Belm do Par is the first treaty
to specifically address violence against women. This Convention binds signatories
of the Inter-American system and demonstrates a regional commitment to the
eradication of violence, as well as discrimination, against women.
117
Though this
Convention is limited in scope because it is a regional treaty and thus does not have
global binding authority, it does signal that there is a growing norm that domestic
violence must be prohibited and should uniformly be seen as a human rights
violation.
118
Thus, it extends the rights for women that are supported in international
instruments like CEDAW.
The Convention of Belm do Par is enforced through two distinct
systems: the Mechanism to Follow Up on the Implementation of the Convention on
the Prevention, Punishment and Eradication of Violence against Women
(MESECVI) and the governing bodies of the OAS, which are the IACHR and the
Inter-American Court of Human Rights.
119
The OAS established the IACHR in
1959, and the Inter-American Court in 1979.
120
The role of the IACHR includes
supervising human rights issues of all of the OAS member states and, in conjunction
with the Inter-American Court, investigating petitions and complaints against these
states and making recommendations.
121
If a human rights issue should arise, the
IACHR will determine if a petition is admissible, and if so, the IACHR can send the
case to the Inter-American Court for review and determination based on the merits
of the case.
122
Such was the process for several important domestic violence cases
brought before the IACHR under violations of various treaties such as the American
Declaration on the Rights of Man and the Convention of Belm do Par.
123

Of the thirty-four member states in the OAS, only the United States and
Canada have failed to ratify or accede to the obligations of the treaty.
124
While the
Convention of Belm do Par is not the sole means by which U.S. citizens could
bring a case before the IACHR,
125
bringing a petition under violations of the
Convention of Belm do Par would allow individuals to make specialized claims
under Article 7 of the treaty. Under Article 7, states have a specific duty to prevent
and punish all instances of violence against women.
126
Both the IACHR and the

that the state in question is taking to protect women from violence. Information should also be
provided on the effectiveness of such measures. Id. However, a problem arises because often, the
CEDAW Committee has been allocated insufficient time each year in which to review all the
reports submitted. The delays caused constitute one of the factors that have led to problems as
regards the enforcement of CEDAW. Id.
117
118
Id. at 81.
119
MESECVI, About the Belm do Par Convention, ORG. OF AM. STATES,
http://www.oas.org/en/mesecvi/convention.asp (last visited Jan. 21, 2013).
120
IACHR, What is the IACHR?, ORG. OF AM. STATES,
http://www.oas.org/en/iachr/mandate/what.asp (last visited Jan. 21, 2013).
121
Siegel, supra note 18, at 731; Spieler, supra note 1, at 129.
122
123
See infra Part III.C.
124
Basic Documents in the Inter-American System, ORGANIZATION OF AMERICAN STATES,
http://oas.org/en/iachr/mandate/Basics/Belmdopararat.asp (last visited Sept. 9, 2012).
125
See e.g., Lenahan v. United States, Case No. 12.626, Inter-Am. Commn H.R., Report No.
80/11, OEA/Ser. L/V/II.111 doc. 20 rev. 2 (2011) Jessica Lenahans petition to the IACHR was
brought forward under the American Declaration, presumably because the United States has not
yet ratified the Convention of Belm do Par. Id.
126
See Convention of Belm do Par, supra note 29, art. 7.
94

Inter-American Court are viewed as [m]echanism[s] for [p]rotection, consisting of
the presentation of individual and/or collective petitions concerning violations of
Article 7 of the Convention.
127

Section A discusses the Convention of Belm do Par and its significant
provisions. Next, Section B looks at how the Convention has been implemented
throughout the North- and South-American region. Finally, Section C analyzes how
the IACHR enforces the Conventions provisions. The Convention of Belm do
Par is a groundbreaking regional instrument that has the power to reframe the
discourse on humanitarian standards relating to violence against women in North
and South America.

A. The Convention of Belm do Par

Although there are a number of international treaties that discuss the rights
of women, the Convention of Belm do Par is unique because it is the first treaty in
the world to specifically address domestic violence, and it is the only regional treaty
that explicitly prohibits violence against women.
128
The Convention of Belm do
Par is also the most ratified human rights treaty in the Western Hemisphere.
129
The
Convention defines violence against women as any act or conduct, based on
gender, which causes death or physical, sexual or psychological harm or suffering to
women, whether in the public or the private sphere.
130
In addition, the Convention
establishes that every woman has the right to be free from violence, the State shall
exercise due diligence in its response to violence against women, and any person or
group may petition the Commission to review a States noncompliance with its
measures.
131

Highlighting the fact that violence against women is of national concern,
and not just a private family matter or local issue, the Convention of Belm do Par
places on the state the responsibility to protect women from gender-based
violence.
132
Article 2(c) specifically prohibits physical, sexual, and psychological
violence that is perpetrated or condoned by the state or its agents regardless of
where it occurs.
133
Chapter III of the Convention focuses on the duties of the states,
a list that includes monitoring state officials (including judges, police officers, and
administrators) to ensure that they abide by the doctrines of the Convention
134
and
apply due diligence to prevent, investigate and impose penalties for violence
against women.
135
Although it is almost universally accepted that a state has

127
MESECVI, supra note 119.
128
See MEYERSFELD, supra note 1, at 80; INTER-AM. COMMN OF WOMEN, FOLLOW-UP
MECHANISM TO THE BELM DO PAR CONVENTION (MESECVI), SECOND HEMISPHERIC REPORT
ON THE IMPLEMENTATION OF THE BELM DO PAR CONVENTION 9 (2012) [hereinafter
MESECVI REPORT].
129
Amnesty Intl, Tenth anniversary of the Convention of Belm do Par: Time for action! (June 7,
2004), http://www.amnesty.org/en/library/asset/ACT77/063/2004/en/8209a049-d5c7-11dd-bb24-
1fb85fe8fa05/act770632004en.html; See also Abi-Mershed, supra note 59, at 130.
130
Convention of Belm do Par, supra note 29, art. 1.
131
Siegel, supra note 18, at 73031.
132
MEYERSFELD, supra note 1, at 80; See also Abi-Mershed, supra note 59, at 127 (The
Convention of Belm do Par expressly incorporates the principle of due diligence.).
133
134
Id. art. 7(a).
135
Id. art. 7(b).
95

obligations to monitor the actions of its agents,
136
there might also be an additional
international obligation to prevent and/or respond to the transgression of protected
rights by individual non-state actors.
137
This view of due diligence places a higher
burden on the state to act in instances of violence against women.
Ratifying states must also adopt specific legislation prohibiting violence
against women. Article 7(c) requires that states include in their domestic
legislation penal, civil, administrative and any other type of provisions that may be
needed to prevent, punish, and eradicate violence against women and [] adopt
appropriate administrative measures where necessary.
138
States must implement
legislation that prohibits harassing, intimidating or threatening women
139
or repeal
existing laws that violate the intentions of the Convention by condoning
discrimination against women and maintaining the pattern of violence.
140
The
Convention also provides civil remedies for victims of violence, such as restitution
and reparation.
141
Similar to VAWA in the United States, the Convention directs
funding efforts to ratifying states to promote awareness of the need to end violence
against women and to monitor the progress in each country.
142
Beyond imposing
new legislation and policies to guard against violence against women, awareness
campaigns have become an important step in preventing intimate partner
violence.
143
Research has shown that the states function in protecting victims of
domestic violence and enforcing legislation plays an important role in reducing the
prevalence of intimate partner violence.
144
The failure of the state to adequately
address the gender dynamics at play in domestic violence is one of the driving
forces behind its continued, uniform perpetuation.
145
Thus, the Conventions
emphasis on increasing awareness of the problem of domestic violence creates an
additional method to aid each state in combating domestic violence.
The Convention of Belm do Par affects traditional jurisprudence on
violence against women by creating more safeguards for women and by reinforcing
the jurisdiction of the IACHR to make binding decisions and recommendations.
When compared to other international instruments like CEDAW, the Convention of
Belm do Par can be considered a more significant and powerful treaty.
146
This is
partly due to the fact that aside from general prohibitions on violence against

136
Abi-Mershed, supra note 59, at 127 ([A] state is clearly responsible for the acts and omissions
of its agents.).
137
Id.
138
Convention of Belm do Par, supra note 29, art. 7(c).
139
Id. art. 7(d).
140
Id. art. 7(e).
141
Id. art. 7(g). Article 7(g) establish[es] the necessary legal and administrative mechanisms to
ensure that women subjected to violence have effective access to restitution, reparations or other
just and effective remedies. Id.
142
MESECVI, supra note 119, at 46 (Under Article 8(a) of the Belm do Para Convention, the
States Parties agreed to undertake progressively specific measures, including programs to promote
awareness and observance of the right of women to be free from violence and the right of women
to have their human rights respected and protected, among others.).
143
Id. The Committee found that the majority of States conducted campaigns to raise awareness
of violence against women, to publicize womens rights and educate women about them but that
an even greater impact can be achieved with permanent campaigns that have no pre-established
end date and that are evaluated periodically to ensure that the goals set are achieved. Id.
144
145
Id. at 102.
146
Id. at 80.
96

women, the Convention also gives victims access to an international court where
individuals can file petitions against OAS-member states.
147
These injured parties
can bring their case before the IACHR and raise the international profile of the
problem of violence against women in their country.
148
Because the Convention is a
binding document, the decisions of the IACHR have a powerful force among any
violating states.
149

B. The Successes and Failures of the Convention of Belm do Par as
Reported Through the Follow-up Mechanisms to the Treaty.

In 2012, the OAS employed the follow-up mechanism to the Convention,
known as MESECVI, to assess the developments made by state parties to the
Convention of Belm do Par and their compliance with the provisions of the
treaty.
150
The MESECVI Report emphasized that in addition to an effective
implementation of domestic laws, a judicial enforcement of the Convention would
also be necessary.
151
After the Conventions initial adoption, reports indicated that
many of the provisions enforced by the states were gender-neutral, thus losing sight
of the fact that women represent the majority of the victims of domestic violence
and that such gender-neutral provisions reflect[] a historical inequality of men and
women that legitimizes the violation of womens rights.
152
Conversely, countries
that chose to incorporate gender-specific phrasing, as per the requirements of
Article 1, have implemented effective laws on violence against women.
153
Among
OAS member states that have adopted the Convention, there is a general trend
towards an integration of the Conventions definition of violence against women
into their domestic laws.
154

In general, the follow-up report on the status of the Convention indicates
an improvement in the way that the Convention has been implemented since its
ratification in 1995. In the initial 2008 follow-up, the MESECVI committee found
that most states had failed to perform their obligations under Article 7 because they
did not produce a coordinated effort to address the issue of intimate partner
violence.
155
While these states did have programs that acted in accordance with the
Convention, the lack of a national plan made many of these programs ineffective. In
its most recent 2012 report, MESECVI concluded that the majority of States now
have a plan of action or national plan on violence against women or are in the
process of implementing one, which includes reporting measures to evaluate the
effectiveness of these programs.
156

147
148
This right is not exclusive to signatories of the Convention of Belm do Par. The Inter-
American Commission has jurisdiction over states that have signed the American Convention on
Human Rights. See Spieler, supra note 1, at 129.
149
150
MESECVI REPORT, supra note 128, at 11 (This follow up was instituted after the CIM
conducted research and found that the Conventions objectives were not being achieved.). This
was in addition to the previous follow-up mechanism in 2008.
151
Id. at 16.
152
Id. at 17.
153
Id; See infra pp. 31-32.
154
Id.
155
Id. at 49.
156
Id. at 4950. But the MESECVI Committee notes that [m]any of the plans reviewed were
found not to have provisions that take into account diversity among women or measures to prevent
97

Although the provisions of the Convention are part of the domestic
legislation of each ratifying state, enforcement is still left up to judges and
prosecutors. The MESECVI Report has indicated that judges in some countries are
incorporating the provisions and policies of the Convention of Belm do Par into
their jurisprudence, resolving many of the earlier concerns of the MESECVI
Committee.
157
Thus, the Convention has served as a useful guide to many judges
and state legislatures on how to address and enforce provisions protecting victims of
domestic violence.

C. IACHR Jurisprudence on Violence Against Women

The Convention of Belm do Par allows the IACHR to develop and
implement standards of international human rights law concerning violence against
women. Human rights cases may come before the IACHR under the Convention
when petitioners have exhausted all available domestic remedies. The decisions and
recommendations of the IACHR serve as a powerful guide for standards that need
to be adopted in the Inter-American system to address issues of domestic
violence.
158
The IACHR monitors developments in countries throughout the
Americas and has witnessed the significant improvement of legal standards
regarding violence against women, much of which can be attributed to the
adoption by the American states of the Convention of Belm do Par.
159
The
merits-based decisions of the IACHR have helped shape the legal development of
the concept of due diligence as it relates to violence against women as well as the
role and duty of the state regarding these issues.
160

Cases brought before the IACHR that involve the application of
humanitarian treaties like the Convention of Belm do Par indicate that the
Convention can prove influential in each adopting state. In Maria da Penha Maia
Fernandes v. Brazil,
161
for example, the IACHR heard a domestic violence case that
had been languishing in Brazilian courts for over 15 years. The IACHR outlined the
due diligence standard and Brazils responsibility to adjudicate and prevent
domestic violence under the guidelines of the Convention of Belm do Par.
162
The
Maria da Penha case and subsequent state-enacted legislation represent the
significant impact that the IACHR and the Convention of Belm do Par can have
on OAS-member ratifying states. Recently, in Jessica Lenahan (Gonzales) v. United

violence at every stage in a womans life. Some plans do not have any information regarding
penalties for failure to carry them out. Id. at 50. The MESECEVI also suggested that the states
establish penalties for public officials who fail to carry out their plan. Id.
157
Id. at 49.
158
Legal Standards, supra note 33, 9 ([T]he standards of the [I]nterAmerican human rights
system serve as a guide for the member states of the OAS on how to implement various obligations
related to gender equality, and may operate as an important resource and instrument for the
advocacy and monitoring work of civil society organizations, international organizations, and
academia.).
159
Id. 16. In addition to the Convention, the IACHR also recognized significant reforms such as
CEDAW and General Recommendation 19 of the CEDAW Committee. Id.
160
Legal Standards, supra note 33, 20. See also Andrews & Khavinson, supra note 27, at 25
(Unlike a court, the recommendations of the IACHR are non-binding, although they are a source
of moral and political pressure on the U.S. and other member states.).
161
Fernandes v. Brazil, Case 12.051, Inter-Am. Commn H.R., Report No. 54/01, OEA/Ser.
L/V/II.111 doc. 20 (2001)
162
98

States,
163
the IACHR ruled on the United States approach to the issue of domestic
violence. By analyzing these two cases, Maria da Penha and Jessica Lenahan,
Brazils treatment of domestic violence can be compared with the United States
approach to reveal how the Conventions provisions might aid victims of domestic
violence in the United States.

1. Brazil and the Maria da Penha Case

The first case to apply the Convention of Belm do Par was Maria da
Penha Maia Fernandes v. Brazil.
164
This case involved Maria da Penha, a Brazilian
woman who was the victim of two homicide attempts by her then estranged
husband. The first instance involved him shooting her in the back while she was
sleeping. She survived but became a paraplegic.
165
Upon her return from the
hospital her husband tried to electrocute her in their bathtub.
166
Despite these serious
and violent attacks on his wife, Marias husband did not face any sanctions by a
Brazilian court or the government until Maria filed a case with the IACHR.
167
Prior
to the filing in the IACHR, Marias husband had not been imprisoned and appeals
against an initial conviction had been left pending for years.
168
Maria argued that
Brazil condoned the situation for more than fifteen years, and that it failed to take
appropriate measures to prosecute and punish her aggressor, despite repeated
complaints.
169
Moreover, Brazil had created a risk of impunity by not issuing a
final ruling, since punishment in this case . . . [may] be barred by the statute of
limitations twenty years after the occurrence of these events.
170
By allowing for
significant delays in the case, Brazilian courts were heading towards the point
where Marias attacker might walk away free from any criminal sanctions.
When Maria da Penha brought her case before the IACHR, data indicated
that there was a failure on behalf of the state to recognize the issue of domestic
violence within its borders. Brazil had exhibited a pattern of ignoring gender-
motivated violence and under-enforcing existing laws prohibiting violence
generally. When Brazil began collecting information on the instances of violence
against women in the 1980s, the data demonstrated that there was a clear difference
in the frequency and severity of violence affecting women and men.
171
Data showed
that women represented forty-four percent of the total number of victims of
physical aggression.
172
The evidence indicated that in most cases, men who were
part of the womens intimate and affective circle were the perpetrators of the

163
Lenahan v. United States, Case No. 12.626, Inter-Am. Commn H.R., Report No. 80/11,
OEA/Ser. L/V/II.111 doc. 20 (2011).
164
Legal Standards, supra note 33, 23. See also Abi-Mershed, supra note 59, at 132. Maria da
Penha was also the first case in the regional system to demonstrate what the state obligation to
apply due diligence could require in cases of violence at the hands of a private individual. Id. at
133.
165
166
Id.
167
Jodie G. Roure, Domestic Violence in Brazil: Examining Obstacles and Approaches to Promote
Legislative Reform, 41 COLUM. HUM. RTS. L. REV. 67, 8990 (2009).
168
Abi-Mershed, supra note 59, at 132.
169
170
L/V/II.111 doc. 20 rev. 19 (2001).
171
172
Id.
99

violence.
173
Thus, intimate partner violence proved to be a major problem for
women living in Brazil.
The events leading up to Maria da Penhas heinous case can be attributed,
in part, to the lack of effort by Brazil to recognize and curb violence against women.
Upon reviewing the merits of Maria da Penhas case, the IACHR found that Brazil
had failed to act with the due diligence required to prevent, punish, and eradicate
domestic violence, for not having convicted or punished the perpetrator in the
case.
174
Importantly, the Commission viewed the problem as representing a pattern
of negligence and a failure of Brazil to prosecute batterers.
175
The state, in essence,
had failed to exercise due diligence to prevent and respond to a domestic violence
case despite the clear evidence against the abuser and the seriousness of the
charges.
176

The Commission found that the lack of enforcement of Maria da Penhas
rights was at odds with the international commitment voluntarily assumed by the
State when it ratified the Convention of Belm do Par.
177
Brazil had a duty to
protect its citizens and to prevent this type of violence.
178
Article 7(f) of the
Convention of Belm do Par establishes that there must be fair and effective legal
procedures for women who have been subjected to violence which include . . .
protective measures, a timely hearing and effective access to such procedures.
179

Given the fact that Maria da Penha had faced numerous challenges in bringing her
case before Brazil, a process that took almost two decades, the IACHR found the
state in violation of the Convention of Belm do Par for its ineffective response to
Maria da Penhas case. The Commission noted that Brazil had effectively
condone[d] the violence suffered by Maria da Penha.
180
By not taking action, the
Brazilian courts had exacerbat[ed] the direct consequences of the aggression by her
ex-husband.
181
Stating that this case represents the tip of the iceberg when it
comes to Brazils treatment of victims of domestic violence,
182
the IACHR held that
the effect of the states inaction was to perpetuate the cycle of violence against
women in the country.
183
Furthermore, the due diligence standard requires that
states must not only prosecute abusers but also prevent such violent acts.
184

The IACHR was the first international body to address the problem of
domestic violence in Brazil.
185
In addition to its ruling, the IACHR made
recommendations to Brazil in the form of changes to its public policy, including

173
Id. at 12627 (In contrast, 83% of the aggressions against men occurred . . . by casual
acquaintances or strangers.).
174
175
See e.g., Fernandes v. Brazil, Case 12.051, Inter-Am. Commn H.R., Report No. 54/01,
OEA/Ser. L/V/II.111 doc. 20 rev. 51 (2001).
176
177
L/V/II.111 doc. 20 rev. 55 (2001).
178
179
180
L/V/II.111 doc. 20 rev. 55 (2001).
181
Id.
182
Id. 57.
183
Id. 55.
184
185
100

trainings for police officers and the judiciary.
186
The IACHR also encouraged Brazil
to restructure its teaching curricula to include the Convention of Belm do Par,
among other reforms.
187

The significance of the Convention of Belm do Pars binding effect on
Brazil can be felt in the domestic reforms that Brazil implemented after the
IACHRs ruling. In addition to following the recommendations of the IACHR,
Brazil responded by creating the Maria da Penha Law, which brought Brazil into
observance with the Convention of Belm do Par.
188
The law created mechanisms
and institute[ed] reforms to restrain domestic violence and bring Brazilian law into
compliance with [CEDAW] and the Convention of Belm do Par.
189
Prior to this
law, there was no criminal legislation prohibiting domestic violence in Brazil.
Domestic violence cases were frequently tried in a special court that punished
domestic violence crimes through the donation of food baskets to charity or the
payment of fines.
190
Brazil also gave the Convention of Belm do Par
constitutional status within the state.
191

As a result of the Convention and the IACHR ruling, Brazil took measures
to effectively alter the discriminatory landscape and prevent inadequate or
inefficient judicial protection for domestic violence victims. After Brazil took
action, the IACHR noted that [i]n the [I]nter-American system, the Convention of
Belm do Par reflects concern throughout the Hemisphere over the severe problem
of violence against women, its relationship to the discrimination suffered by women
throughout history as well as the need to adopt comprehensive strategies to
prevent, punish, and eradicate it, including violence within the family or household
unit.
192
There is evidence that the Maria da Penha Law has led to meaningful
reforms in Brazil: the National Council of Justice of Brazil collected data showing
. . . more than 331,000 prosecutions and 110,000 final judgments, and nearly two
million calls to the Service Center for Women from 2006 until 2011.
193
Thus, the
decision of the IACHR and the implementation of the Convention of Belm do Par
have helped foster positive change in Brazil. The report of the IACHR also led to
the imprisonment of Maria da Penhas abuser.
194

186
Id. at 91.
187
Id.
188
Id. at n.5. See also, Press Release, Rapporteurship on the Rights of Women of the Inter-Am
Commn on Human Rights (IACHR), The IACHR Rapporteurship on the Rights of Women
Celebrates the Adoption in Brazil of a Specific Law to Prevent and Eradicate Domestic and Family
Violence (Aug. 11, 2006), available at
http://www.cidh.org/comunicados/english/2006/30.06eng.htm [hereinafter IACHR Press Release].
189
190
Id. at 68.
191
MESECVI REPORT, supra note 128, at 15.
192
IACHR Press Release, supra note 187.
193
UN WOMEN, Maria da Penha Law: A Name that Changed Society, UNWOMEN.ORG (Aug. 30,
2011), http://www.unwomen.org/2011/08/espanol-ley-maria-da-penha.
194
Abi-Mershed, supra note 59, at 133 (The findings of the report helped to impel a number of
changes at the local level, including that the perpetrator was finally brought before the judiciary,
sentenced and imprisoned for a period.).
101

2. Criticizing the United States: Jessica Lenahan and the IACHR

In Town of Castle Rock v. Gonzales,
195
Jessica Lenahan (formerly
Gonzales), a victim of domestic violence, obtained a restraining order with a
mandatory arrest provision against her estranged husband. One month after
Colorado courts issued this restraining order, the Castle Rock police failed to
enforce this mandatory order despite repeated attempts made by Jessica Lenahan
over a span of ten hours.
196
As a consequence of this police inaction, Jessicas
husband killed their three children.
197
The Supreme Court held that the mandatory
arrest provision was not an enforceable right because states have no obligation to
protect individuals against private citizens.
198
Speaking for the majority, Justice
Scalia stated that Jessica Lenahan did not, for purposes of the Due Process Clause,
have a property interest in police enforcement of the restraining order against her
husband.
199

Jessica Lenahan then brought her case before the IACHR.
200
The IACHR
based its jurisdiction to hear Jessica Lenahans case on the fact that the United
States signed the American Declaration on the Rights of Man; the Commission
believes that the United States is bound as a matter of law to take affirmative
measures to give effect to the rights contained in the Declaration and thus the
IACHR acknowledges that it has jurisdiction to hear cases involving claims against
the United States.
201
Jessica argued that the United States failed to act with due
diligence to protect [her] . . . and her daughters against domestic violence acts
committed by her exhusband and the father of her daughters, even in the presence
of a protection order; events which resulted in the death of her three children.
202
In
its defense, the United States claimed that there was no pattern of police inactivity
in relation to domestic violence.
203
The United States also drew attention to five

195
Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).
196
Id.
197
Id.
198
Id. at 768.
199
Id.
200
In 1948, the United States signed the OAS charter, as well as the American Declaration on the
Rights and Duties of Man. See Department of International Law, ORGANIZATION OF AMERICAN
STATES, http://www.oas.org/dil/treaties_A-
41_Charter_of_the_Organization_of_American_States_sign.htm (last visited September 30, 2012).
The United States made the reservation that none of [the provisions of the charter] . . . shall be
considered as enlarging the powers of the Federal Government of the United States or limiting the
powers of the several states of the Federal Union with respect to any matters recognized under the
Constitution as being within the reserved powers of the several states. Id. See also Spieler, supra
note 1, at 129.The Inter-American Commission views the signing of the American Declaration as
binding on OAS member states that have yet to ratify the American Convention on Human Rights.
Spieler, supra note 1, at 129. By ratifying the American Convention, the adopting state
automatically recognizes the IACHRs competence to receive individual cases of human rights
violation[s]. Id. at 128 (However, the state needs to expressly declare that it recognizes the Inter-
American Court of Human Rights jurisdiction.). Thus, signatories of the American Declaration
are bound by the provisions of the American Convention, which allows for the IACHR to issue
decisions regarding issues arising in the United States.
201
202
203
See Caroline Bettinger-Lopez, Human Rights at Home: Domestic Violence As A Human Rights
Violation, 40 COLUM. HUM. RTS. L. REV. 19, 37 (2008) (The State Department portrayed the
102

different programs created outside of VAWA resources designed to improve inter-
and intra-state enforcement of protective orders, yet with the exception of one, these
programs are . . . voluntary and largely ineffective.
204

The IACHR ruled in favor of Jessica Lenahan and admonished the United
States for its treatment of victims of domestic violence.
205
The IACHR decided that
the United States had violated Jessicas human rights as well as the rights of other
abuse survivors throughout the country and then declared that the United States
had continuously failed to fulfill its legal obligation to protect individuals like
Jessica from domestic violence, and set forth recommendations to guide the country
into compliance with international law.
206
The IACHR also criticized the lack of
national legislation in the United States to address domestic violence. Though the
Commission did note that VAWA is a comprehensive legislative package, it
found that most of the laws that protect persons in the United States from domestic
violence and provide civil remedies against perpetrators and other responsible
parties are state and local laws and ordinances.
207
Thus, the IACHR observed that
there was a considerable lack of availability and scope of federal claims of action
for victims of violence.
208
Calling the Supreme Courts domestic violence
decisions restrictive,
209
the Commission recognized that there is a dearth of
binding federal law that protects victims of domestic violence in the United States,
and that often the police fail to adequately respond to women in need.
210

While the IACHR rejected the Governments claims, the United States
position on mandatory arrest policies, and on intimate partner violence in general,
has become glaringly clear. After the IACHRs findings in the Lenahan case, it is
unmistakable that relying on states to enforce rights, such as a mandatory arrest
provisions in a protection order, is not an adequate remedy for victims of domestic
violence. The Convention of Belm do Par requires that states take responsibility
to ensure that the rights of their citizens are enforced and provide greater protection
for victims of gender-motivated violence like Jessica Lenahan.
The IACHRs review of U.S. domestic violence policy can be compared to
its analysis of Brazil in the Maria da Penha case. In both instances, the state had
failed to enforce rights prohibiting violence against women. While Brazil, unlike the
United States,
211
did not have any domestic violence laws in place at the time of
Marias petition, Brazil was a signatory of the Convention of Belm do Par, which
specifically prohibited such violence and enlisted a due diligence standard to
prevent domestic abuse. In both cases, the state participated in a pattern of neglect
on behalf of victims of domestic violence. Because Brazil ratified the Convention,
the IACHRs decision was binding on the state. Subsequently, Brazil implemented
new legislation that had a tangible effect on stopping violence against women.

United States as a world leader in decreasing violence against women, and highlighted laws such
as the VAWA as best practice models.).
204
Id. at 44 n.122.
205
Id. at 37.
206
207
Lenahan v. United States, Case No. 12.626, Inter-Am. Commn H.R., Report No. 80/11,
OEA/Ser. L/V/II.111 doc. 20 rev. 98 (2011).
208
Id. 211.
209
Id.
210
Id.
211
During the time that Jessica Lenahan brought her claim, VAWA was well established in the
United States and Colorado law on mandatory arrests was in effect.
103

Although the IACHR ruled on the Lenahan case, its decision does not have any
binding effect on the United States. Had the United States ratified the Convention of
Belm do Par, the IACHR would have more authority to meaningfully impact the
United States approach to domestic violence.
Because of the current absence of an appropriate U.S. federal remedy, the
ratification of an international treaty such as the Convention of Belm do Par is
needed to address intimate partner violence in the United States and the nations
tacit acceptance of gender-based violence. Though the IACHRs decision in Jessica
Lenahans case may be viewed as largely symbolic,
212
recommendations of the
IACHR can pressure the United States to make policy changes.
213
Foreign relations
pressures can influence how the United States acts domestically
214
and the IACHRs
criticism of the United States could ignite domestic action. However, should the
United States become a signatory to the Convention, the decisions of the IACHR
would be binding and have more force in reducing and preventing violence against
women.

III. CIRCUMSTANCES FOR RATIFYING THE CONVENTION OF BELM DO PAR

While some theorists might posit that the existence of federal and domestic
legislation specifically addressing violence against women counters the need to look
to international standards, this is inaccurate when considering the effective
implementation of rights. There is an important distinction between establishing
rights and ensuring that these rights receive a practical application.
215
Martin
Guggenheim makes a similar argument in advocating for the United States
ratification of the Convention on the Rights of the Child, noting that while no one
would deny that children in the United States possess any measure of rights, the
existence of rights do not mean that they have an impact on the targeted group.
216

Likewise, the current state of domestic violence legislation in the United States is
far from sufficient to ensure that victims of domestic violence have effective legal
resources. To guarantee that ending violence against women in the United States
remains a priority, the Convention of Belm do Par must be ratified.
Section A discusses the benefits of ratification, which include maintaining
the United States reputation for upholding humanitarian standards and continuing
its global presence. Section B explores the possible impediments to ratification
where the Convention and federal standards relating to state responsibility conflict.
Ultimately, any impediments can be ameliorated through selective ratification of the
most significant provisions of the Convention. Section C concludes with an
alternative framework to adopt the Convention of Belm do Par that bypasses the

212
Siegel, supra note 18, at 729. Although the United States is not required to act, the
Commission will continue to monitor the United States and release follow up reports about the
country's progress. Id.
213
Andrews & Khavinson, supra note 28, at 25.
214
DUDZIAK, supra note 26, at 17 (American history plays out in a transnational frame. The
international context structures relationships between domestic actors. It influences the timing,
nature, and extent of social change. This suggest that an international perspective does not simply
fill in the story of American history, but changes its terms.).
215
See Martin Guggenheim, Ratify the U.N. Convention on the Rights of the Child, 20 EMORY
INTL L. REV. 43, 47 (2006) (arguing that there is a difference between technically possessing
rights and actually enjoying these rights).
216
Id. at 51.
104

formal ratification process and encourages a grassroots movement to help shift the
current discourse on domestic violence in the United States.

A. Benefits of Ratification

There are reputational incentives for the United States to meet international
standards of protecting women against domestic violence.
217
Failing to adhere to
basic international humanitarian principles relating to domestic violence could
greatly impact the influence of the United States abroad.
218
The United States is a
leader in allocating rights to individuals, and the significance of the United States
ratifying this treaty could have a global impact.
219
Human rights depend upon the
development of a community that believes in them rather than a complete reliance
on an authority . . . that will enforce them.
220
The decisions of the United States
have an international impact; the adoption of the Convention will send a powerful
message to the international human rights community that the world no longer
condones violence against women. The United States has influenced global
decisions before and it is becoming necessary for American courts to maintain
cognizance of developments outside the United States in order to meaningfully
participate in a globalized society.
221
Ratification of the Convention would allow
the United States to become a more credible proponent of the rights of women and
a more effective advocate in encouraging other countries to protect the human rights
and fundamental freedoms of women.
222

Having a strong conception of womens rights, as outlined in the
Convention, and recognizing the global problem of violence against women would
also be significant. The provisions in the Convention advocate for the states active
role in ensuring that women are not subject to targeted violence based on their
gender.
223
A significant advantage of the Conventions MESECVIs Follow-Up
Report is the impact that this procedure has on the ratifying states. For example,
after Maria da Penha, Brazil adopted a new law to address domestic violence and
prevent judicial misconduct. The Rapporteurship on the Rights of Women of the
Inter-American Commission recognized that this change was due to Brazils

217
Andrews & Khavinson, supra note 28, at 25 (IACHR decisions give activists an opportunity to
highlight the lack of remedy within a domestic legal system. It can be embarrassing for an
international body to report that a country has violated international standards by failing to protect
the [human rights] of its citizens. As a result, IACHR decisions can be a powerful way to pressure
the government to reconsider its own laws, policies, and customs.).
218
Siegel, supra note 18, at 748 (The United States' international reputation plays an unavoidable
role in its future place in the world, and it has a dramatic impact on its national security, the
success of its humanitarian efforts, its political credibility, and the strength of its markets.). Cf.
DUDZIAK, supra note 26, at 253 (State power is affected by the mirror of international criticism.
Its autonomy over domestic matters is limited by its role in the world.).
219
See Isabelle Solon Helal, The UN Declaration on the Elimination of Violence Against Women
and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence
Against Women (July 16, 2002, 6:08 PM), http://www.nawl.ca/en/newlibrarypage/jurisfemme/71-
jfvolume21summer2002/338-the-un-declaration-on-the-elimination-of-violence-against-women-
and-the-inter-american-convention-on-the-prevention-punishment-and-eradication-of-violence-
against-women?format=pdf (where the author argues that the signing of the Convention of Belm
do Par would have a great impact on whether or not Canada would sign the treaty).
220
Guggenheim, supra note 212, at 68.
221
222
Id.
223
Convention of Belm do Par, supra note 29.
105

participation in the Convention of Belm do Par.
224
As a signatory to the
Convention, the United States would also be held accountable to the MESECEVI
Committee. Although a complete adoption of the Convention and its provisions is
unlikely and might not be fully desirable,
225
the adoption of a workable standard
that holds states accountable for enforcing approved human rights is needed to
strengthen the rights of victims of domestic violence.
Bringing the treaty up for ratification in the U.S. Senate would also
encourage public debate about how to remedy the problem of violence against
women. Both Congress and the U.S. Department of State have already supported
the adoption of this treaty.
226
In 1996, the House of Representatives authorized a
concurrent resolution with the Senate in support of ratifying the Convention of
Belm do Par. Recognizing that violence against women constitutes a violation of
[womens] human rights and fundamental freedoms and is an offense against
human dignity, the House advocated for the immediate passage of the
Convention.
227
Moreover, womens rights advocates could use this treaty as a tool
to bring the issue of domestic violence into the public discourse. VAWA was, in
part, a result of the grassroots movement of many womens groups.
228
Thus, public
debate on the status of women in the United States could result from an attempt to
adopt this treaty and might also affect Congress next draft of VAWA and reforms
on the state level.

B. Potential Impediments to Ratification

Admittedly, there are some obstacles to a formal adoption of the
Convention. The Conventions view of due diligence and the federal governments
responsibility to prevent and punish acts of violence against women is somewhat at
odds with the Morrison and Castle Rock decisions of the Supreme Court.
229
The
Court has advocated for state statutory enactments to handle the issue of due
diligence, as opposed to actions by the federal government.
230
However, the Court
has looked previously to international law to support its decisions
231
and it is

224
Abi-Mershed, supra note 59, at 133.
225
For example, the Conventions requirement that signatories alter their constitution to prohibit
violence against women is unlikely to have much support in the United States.
226
H.R. CON. RES. 182, 104th Cong. (1996); U.S. Dept of State Resolution AG/RES. 2371 (June
3, 2008).
227
H.R. CON. RES., supra note 223.
228
See Office on Violence Against Women, About the Office, U.S. DEPT OF JUSTICE,
http://www.ovw.usdoj.gov/overview.htm (last updated Apr. 2012) (This Act emerged from the
efforts of a broad, grassroots coalition of advocates and survivors who informed the work of
Congress.).
229
See supra Part I.
230
Siegel, supra note 18, at 730 (Global actors like the Organization of American States have
recognized a uniform responsibility for government to take affirmative measures in its response to
domestic violence, including the exercise of due diligence by the United States. Yet, the Supreme
Court has demanded state statutory enactments to achieve government support for survivors while
neglecting impediments to implementation and relegating survivors' lives to unlikely
protections.).
231
Id. at 743. See e.g., Lawrence v. Texas, 539 U.S. 558 (2003), Roper v. Simmons, 543 U.S. 551
(2005). In Roper, for example, both Justice Kennedys majority opinion and Justice OConnors
dissent reference the potential for international law to play a persuasive role in the United States.
106

possible that the Court could look to the Conventions principles in its next case
involving domestic violence and protective orders.
A major argument against ratification might be that it is unnecessary, in
light of the reforms of VAWA and the hundreds of laws that have been passed by
various state legislatures. A similar argument has been made with respect to various
other treaties like CEDAW.
232
In the case of gender-based violence, this argument is
not persuasive. As discussed earlier, United States efforts to end violence against
women have not had their intended effect. Women continue to be beaten, starved,
raped and killed at alarming rates. Given the pronounced desire to end domestic
violence, Congressional attempts to adhere to the standards outlined in the
Convention of Belm do Par should be in line with its stated goals.
Furthermore, any claim that domestic attempts are sufficient can be
contradicted by global statistics ranking the United States well below other nations
in terms of gender-based disparities.
233
The World Economic Forum
234
places the
United States at number 22, behind Cuba and Nicaragua, on a list of 135
countries.
235
Proving that this was no mere anomaly, the United States fell in the
rankings for three straight years.
236
The struggle over the ratification of the most
recent enactment of VAWA indicates that Congress priority has not been to
maintain the very minimum standard of protecting women from intimate partner
violence.
237

Should the United States decide that it wishes to ratify the treaty, it can still
place reservations that could have a debilitating effect on many of the treatys most
significant provisions, such as the due diligence standard outlined in Article 7.
238

The impact of treaties is largely dependent on the degree of commitment held by
states to give effect to their obligations.
239
It is not uncommon for countries like the
United States to make reservations regarding treaties that are self-executing,
240
and
this was true for the Convention of Belm do Par.
241
The presence of reservations

232
See e.g., Andrea Ayres, CEDAW: U.S. Helps Draft Womens Rights Treaty, But Refuses to
Ratify It, POLICYMIC.COM, http://www.policymic.com/articles/22369/cedaw-u-s-helps-draft-
women-s-rights-treaty-but-refuses-to-ratify-it (last visited Jan. 21, 2013) (One of the major
critiques of CEDAW is that it is not necessary for the U.S. to be party to it because we already
have laws that protect women and children.).
233
Meghan Casserly, The Global Gender Gap is Closing, But the U.S. is Still Failing Women,
FORBES.COM (Oct. 24, 2012, 8:58 AM),
http://www.forbes.com/sites/meghancasserly/2012/10/24/the-global-gender-gap-is-closing-but-the-
u-s-is-still-failing-its-women (based on an analysis of gender disparities relating to health and
wellness, political empowerment and economic participation).
234
The World Economic Forum, http://www.weforum.org (last visited March 31, 2014); see also
The World Economic Forum Leadership Team, http://www.weforum.org/content/leadership-team
(March 31, 2014).
235
Casserly, supra note 230.
236
Id.
237
Id.
238
ROGER J.R. LEVESQUE, CULTURE AND FAMILY VIOLENCE: FOSTERING CHANGE THROUGH
HUMAN RIGHTS LAW 166 (2001).
239
MCQUIGG, supra note 116, at 12.
240
LEVESQUE, supra note 235, at 166. See also MCQUIGG, supra note 116, at 12 (arguing that the
United States tends to ratify other international human rights treaties only with extensive
reservations.).
241
See e.g., Basic Documents in the Inter-American System, ORGANIZATION OF AMERICAN
STATES, supra note 36. For example, the Bahamas made a declaration when signing the
Convention of Belm do Par. Id. However, it could be highly problematic and destructive to the
107

alone, however, does not indicate that the treaty will not be implemented
domestically. Placing reservations might be necessary to clarify the obligations of
the ratifying state to the international community.
242
Thus, even if the United States
has some concerns with the domestic impact of signing the treaty, it should still
ratify the Convention because of the availability of creating reservations that still
allow for the implementation of the tangible benefits of the Convention.
There are some notable concerns with the current United States approach
to ratifying international human rights treaties. The existing ratification process in
the United States includes a package of reservations, understandings and
declarations [that] the United States has been attaching to its ratifications of human
rights conventions.
243
These reservations have the effect of preventing significant
change to United States law.
244
The United States uses the following principles
when ratifying a treaty: 1) The United States will not ratify a treaty that is
inconsistent with the United States Constitution, 2) no change in existing U.S. law
or practice can occur as a result of this ratification, 3) the United States refuses to
submit to the jurisdiction of the International Court of Justice, 4) implementation of
the treaty will be left up to the states, and 5) all treaties will be non-self-
executing.
245
Although international law requires that the ratifying state take
measures to fulfill its treaty obligations, without a specific provision, states are free
to implement treaties how they see fit.
246
The practice in the United States has the
potential to weaken effort[s] to establish international human rights standards as
international law.
247
However, knowledge of this ratification policy can also have a
beneficial effect for those who wish to see the United States change its current
approach to international treaties. The recommendations of the IACHR and the
growing awareness of the problem of violence against women in the United States
can serve as a powerful tool to combat the existing United States treaty ratification
practice. Further, even with this policy in place, the United States has still signed
important humanitarian treaties, bringing awareness to global humanitarian
issues.
248
Thus, current United States policy does not foreclose the possibility of
formal ratification of the Convention of Belm do Par.
Becoming a signatory to the convention and raising the treatys profile in
the international community would be a significant step towards addressing
domestic violence issues in the United States. Having a strong conception of
womens rights that prioritizes ending gender-based violence is necessary to alter
the current United States framework regarding domestic violence. In addition,
providing an alternative to the current approach can serve as a guide for how the
federal government and various state legislatures should reform existing legislation.

intentions of the Convention to place declarations and reservations on the most significant portions
of the Convention. CEDAW faced a similar issue when countries placed reservations on the most
significant provisions of the treaty. See MEYERSFELD, supra note 1, at 56.
242
LEVESQUE, supra note 235, at 166.
243
Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker,
89 AM. J. INT'L L. 341, 341 (1995).
244
Id. at 342.
245
Id. at 341 (citation omitted).
246
Id. at 346. But note that the ratifying State remains internationally responsible for any failure
of implementation. Id.
247
Id. at 349.
248
See e.g., Id. at 348 (noting that the United States has ratified the Race Convention and the
Torture Convention under this ratification policy).
108

C. Alternatives to Ratification: Sub-Federal Integration
249

Whether the Convention changes the U.S. Governments view or the
Supreme Courts understanding of the appropriate role of the state in protecting
victims of domestic violence, it can still have an effect on state and city
implementations of the policy.
250
Lesley Wexler proposes that in place of formal
ratification, various localities can adopt the provisions of treaties when the United
States has failed to do so.
251
In 1998, San Francisco, the first such city to implement
a treaty locally, adopted the CEDAW ordinance calling for the implementation
of the treaty on a local level.
252
The city also established a CEDAW taskforce and
[developed] a detailed five-year implementation plan.
253
In this way, a
jurisdiction can bypass impediments that may result from burdensome reservations
that a country might place on a treaty.
The concept of sub-federal integration implies a strong desire from cities
and states to implement treaty norms locally, absent a push from the national
government.
254
These actors can adopt human rights norms and subsequently shape
domestic law.
255
Sub-federal integration circumvents the traditional treaty process
and encourages localities to adopt international conventions, or the most significant
treaty provisions, which might later become mainstream federal legislation.
256

Besides San Francisco, at least six other cities across three different states have also
made efforts to implement human rights treaties.
257
In addition to advocating for the
formal adoption of human rights treaties through state and city laws, activists can
push for community adoption of treaty principles.
Still, there are important benefits that only ratification can provide, such as
the power to influence the treatys structure and aims.
258
Formal adoption of the
Conventions significant provisions should still be the main objective of the United
States.

CONCLUSION: THE UNITED STATES MUST RATIFY THE CONVENTION OF BELM DO
PAR

The United States should look to the international standards in the
Convention of Belm do Par as an effective way to address domestic violence.
There has been substantial development in international law with respect to

249
See Lesley Wexler, Take the Long Way Home: Sub-Federal Integration of Unratified and Non-
Self-Executing Treaty Law, 28 MICH. J. INTL L. 1 (2006).
250
See e.g., Bettinger-Lopez, supra note 200, at 69 (2008). In the absence of national ratification,
cities like San Francisco have implemented provisions of treaties locally. Id.
251
See Wexler, supra note 246, at 1.
252
See Ayres, supra note 229; Berkeley Law, CEDAW: Ratification and Local Implementation
Efforts, http://www.law.berkeley.edu/8285.htm (Last visited Jan. 13, 2013). See also Bettinger-
Lopez, supra note 200, at 69.
253
Berkeley Law, supra note 249.
254
Wexler, supra note 246, at 2.
255
Id. at 5.
256
Id. (Despite claims that treaty ratification is a necessary precondition for the consistent
observance of international human rights and environmental standards, empirical evidence
suggests social movements and government actors may encourage sub-federal actors to implement
treaties in the face of federal apathy, ambivalence, or even hostility.).
257
Id. at 26 n. 148.
258
Id. at 32.
109

standards of due diligence in the context of domestic violence. The Convention
provides a framework for protecting women from violence as well as ensuring that
their rights are protected. Ratifying the Convention will bring the United States in
line with international norms. The Convention holds states accountable for failures
towards victims of violence, something that is largely absent from the Violence
Against Women Act, as interpreted by the United States Supreme Court. Thus, the
Convention sends an important message to batterers and to society that the state is
taking violence against women seriously.
There is a difference between a legal document providing rights, like
VAWA, and effective implementation of those rights.
259
Decisions like Castle Rock
and Morrison prove that the development of increased rights through federal
legislation does not necessarily translate into a better situation for the targeted
group.
260
The Supreme Courts reliance on state measures is an inadequate solution
when it comes to protecting victims of violence and preventing acts of aggression
towards women. Adopting an international binding treaty would resolve the
important domestic issues of violence against women and send a global message
that domestic violence will not be tolerated.
While the current U.S. federal and state legislation has been significant, it
is not sufficient. There is no telling how many deaths and injuries could have been
prevented had the United States conformed to international standards. To show its
continued commitment to protecting the rights of women, the United States should
sign the Convention of Belm do Par, which provides an effective remedy to
ending domestic violence by outlining the necessary changes each state must
implement to prevent future violence.
The Convention is not a fix-all solution for the problems of domestic
violence in the United States, but it is a start to recognizing the systemic problem of
violence against women in this country.
261

259
See Guggenheim, supra note 212, at 51 (where the author, in advocating for the United States to
ratify the Convention on the Rights of the Child, states that even when children have certain
constitutional rights, state officials may be allowed to act towards children exactly as they like
without any meaningful restrictions placed on them by the rule of law.).
260
Id. at 54. Even with the increase in rights for children, rates of poverty of children also
dramatically increased. Id.
261
Executive Notes & Comments Editor, Emory International Law Review; J.D., Emory University
School of Law (2014); B.A., Washington University in St. Louis (2009). I would like to extend my
deepest gratitude to Professor Kay Levine, who advised and mentored me throughout the writing
process. Her comments, suggestions, and insights have profoundly shaped this Article. I would
also like to acknowledge Professor Jami Ake for introducing me to the issue of domestic violence
and the members of the Thurgood Marshall School of Law Journal on Gender, Race, and
Justice for their assistance in editing this Article. Finally, I would like to thank my family and
friends for their tremendous love and support.

110

FLORIDAS STAND YOUR GROUND LAW:
THE NATIONAL RIFLE ASSOCIATION AND IMPLICIT RACIAL BIAS

Kirstin Jarstad

I. INTRODUCTION

Browsing Facebook, I came across a picture posted by a Florida friend.
The picture was of a young black male with long braided hair that stood up at odd
angles. The caption read: For my buddies that hunt: I shot this 18 pointer off my
front porch this morning. I used KFC scent and subwoofers to draw him in. The
post was obviously intended to be humorous; however, the fact that some people
joke about shooting young black men for sport illustrates the troubling direction
America is headed in terms of race and gun laws.
This unfortunate path has been influenced by the National Rifle
Association (NRA) via its advancement of an agenda that exploits the history of
American racism.
1
The NRA successfully promoted the passage of the first Stand
Your Ground (SYG) self-defense law in Florida by taking advantage of existing
racial tensions and southern attitudes toward violence by fostering a culture of fear

1
Cf. Editorial, The Shoot-First State, WASHINGTON Post, May 1, 2005,
http://www.washingtonpost.com/wp-dyn/content/article/2005/04/30/AR2005043000735.html
[hereinafter Shoot-First] (The NRA believes it has a favorable climate, especially in the South . . .
in which to market its macho bill); Amanda Marcotte, The History of the NRA is Really
Interesting, THE RAW STORY, (July 24, 2012, 9:53 E.D.T.),
http://www.rawstory.com/rs/2012/07/24/the-history-of-the-nra-is-really-interesting (gun hysteria
and the belief that gun control is a direct attack on the right of white Americans to protect
themselves from nebulous crime emerged in response to the civil rights movement); See also
Adam Winkler, The Secret History of Guns, THE ATLANTIC, Sept. 2011,
http://www.theatlantic.com/magazine/archive/2011/09/the-secret-history-of-
guns/308608/?single_page=true (The gun control laws of the late 1960s, designed to restrict the
use of guns by urban black leftist radicals, fueled the rise of the present-day gun-rights movement-
one that, in an ironic reversal, is predominantly white, rural, and politically conservative.). U.S.
Rep. Hank Johnson discussed the motives and tactics of the NRA in advancing its agenda.
I think they have invoked racist sensitivities. They . . . are certainly not free
of those kinds of tactics to win their battle. They will gladly confuse people.
They will gladly divide people. And so whatever it takes for them to
accomplish their objective, which is no limits on firearm use and possession
whatsoever. . . . Really the ideas of cowboys and everybody has a weapon and
there are no limits, theres no court system, theres no justice, everything is
just simply handled right there on the spot between the people who disagree
with each other were much more civilized than that. And so our society
has gotten to the point where we must look at the types of weaponry that is
available to the citizenry and whether we want citizens to have those
weapons, whether or not there should be any restraints on what" types of
weapons are available, any regulations at all. Thats what we are dealing with
now.
Daniel Malloy, Hank Johnson: NRA Has Invoked Racist Sensitivities, Political Insider with Jim
Galloway, ATLANTA JOURNAL CONSTITUTION, Jan. 31, 2013, http://blogs.ajc.com/political-
insider-jim-galloway (hereinafter Malloy). See generally Lawson, infra note 34, for a discussion
of race, Trayvon Martin, and self-defense law. See generally Schulze, infra note 181(discussing
the origins of SYG laws); see infra note 2; see infra Parts V and VI.

111

and racial animosity.
2
The successful NRA SYG campaign that originated in
Florida has spread across the country to include over half of the United States.
3

While SYG enables people to protect themselves and their property,
4
it embodies an
implicit racial bias that undermines the American ideals of equality and the value of
human life.
5
Florida and states that have adopted similar SYG laws should
reevaluate their impact and consider their repeal. The killing of Trayvon Martin,
discussed below, provides a tragic example of what SYG laws can produce.

2
See infra Parts V & VI; Paul Solotaroff, A Most American Way to Die, ROLLING STONE, April
25, 2013, at 58, 61 ([Marion Hammers] Stand Your Ground bill, which passed with ease despite
being built on a convenient tale Hammer claimed to have been stalked in a parking garage by six
men, one of whom wielded a long-necked beer bottle before she pulled out her .38 and aimed
gave anyone who deemed himself under attack the right to fire first and explain later.).
Cf. Who is the NRA Leadership?
http://www.meetthenra.org/issues?field_issue_value_many_to_one=Race (quoting NRA leaders
making racially inflammatory statements).
One only has to look to the NRAs Board of Directors to discover that the
organization is operated by a group of individuals who promote racism,
misogyny, homophobia, anti-immigrant animus, religious bigotry, anti-
environmentalism, and insurrectionism. Some active board members have
even had close relationships with brutal dictators in outside nations. Put
simply, members of the NRA leadership no longer make for polite company.
Meteor Blades, Fighting the NRA Leadership Means Knowing Who it is, DAILY KOS (Dec. 21,
2012), http://www.dailykos.com/story/2012/12/21/1172692/-Fighting-the-NRA-leadership-means-
knowing-who-is-in-it (quoting the Educational Fund to Stop Gun Violence); See generally Barney
Warf, The Deep Historical Roots of White Southern Cultures of Justice, 47(1) SOUTHEASTERN
GEOGRAPHER 92, 93-94 (2007) (discussing the historic roots of southern attitudes toward race and
violence); Id. at 94 (long standing racism . . . permeated southern culture, even after the civil
rights movement of the 1950s and 1960s); Richard Maxwell Brown, Southern Violence-Regional
Problems or National Nemesis?: Legal Attitudes Toward Southern Homicide in Historical
Perspective, 32 VAND. L. REV. 225, 228 (1979) [hereinafter Southern Violence] (discussing J.
REED, THE ENDURING SOUTH 45-56 (1972) (southerners retain a value system and behavior
patterns that make them more tolerant of violence and the use of force than other Americans);
Daniel Michael, Floridas Protection of Persons Bill, 43 HARV. J. LEG. 199, 203 (2006)
(discussing Marion Hammer, At Last, Balance Shifts Away from Criminals, ATLANTA JOURNAL-
CONSTITUTION, May 2, 2005 at 11A) (the bill was not introduced in response to a specific case or
incident but rather was an attempt to counterbalance the protection courts give to the rights of
criminals vis--vis the rights of their victims.). Cf. Tom Dias, Bloody Reel-How the NRA and the
Gun Industry Exploit Violent Movies to Sell Guns . . . and More Guns, FAIRLY CIVIL (Jan. 2, 2013
at 11:23 AM), http://tomdiazgunsandgangs.com/2013/01/02/bloody-reel-how-the-nra-and-the-gun-
industry-exploit-violent-movies-to-sell-guns-and-more-guns (For over a decade the NRA has
glamorized the use of guns in violent movies.); Schulze, infra note 181at 39-40 (explaining how
SYG laws promote fear); see infra Parts V.-VII; see generally Eitches, infra note 336 (discussing
the NRAs use of racism and a culture of fear); see generally NATL RIFLE ASSN, FREEDOM IN
PERIL: GUARDING THE 2
ND
AMENDMENT IN THE 21
ST
CENTURY (2006),
http://boingboing.net/images/NR-F8_PERILFINAL.pdf (last visited Feb. 10, 2014) (hereinafter
FREEDOM IN PERIL) (providing an example of the NRAs culture of fear and racial animosity).
3
See infra note 318.
4
FLA. STAT. ANN. 776.012-.013; 776.031-.032; see infra Part III.C.5.
5
See generally P. Leuvonda Ross, The Transmogrification of Self-Defense by National Rifle
Association-Inspired Statutes: From the Doctrine of Retreat to the Right to Stand Your Ground,
35.1 S. U. L. REV. 1 (2007) (explaining how abrogation of the duty to retreat negatively affects the
value of life); Id. at 1 (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES OF THE LAWS OF
ENGLAND 176, 186-87 (1976) ("For the law sets so high a value upon the life of a man, that it
always intends some misbehaviour in the person who takes it away, unless by the command or
express permission of the law... the law will not hold the survivor intirely guiltless."). See infra
Part VII.
112

II. TRAYVON MARTIN

The killing of Trayvon Martin illustrates a disturbing result of SYG law.
Neighborhood Watch volunteer, George Zimmerman, fatally shot a black teenager,
Trayvon Martin, on February 26, 2012.
6
That night, Martin walked to the store to
buy Skittles and iced tea.
7
Zimmerman spotted Martin while Martin was walking
back to the house belonging to his fathers girlfriend, located in a gated community
near Orlando.
8
Zimmerman found Martins appearance suspicious, so he called the
police and explained to a dispatcher, these a--holes always get away.
9

Zimmerman claimed that Martin looked questionable because he was meandering in
the rain, looking at houses,
10
and wearing a sweatshirt with the hood pulled up.
11

The dispatcher instructed Zimmerman to wait for police and stay in his car.
12

Zimmerman, however, disregarded the instructions and left his vehicle to follow
Martin.
13
The two allegedly got into a fight, and Zimmerman shot and killed
Martin.
14
Witnesses stated that they heard someone yell for assistance, but they
could not identify whether it was Martin or Zimmerman.
15

Zimmerman maintained that he shot Martin in self-defense. The police did
not initially arrest him,
16
claiming that they lacked evidence to disprove
Zimmermans assertion.
17
Chris Serino, the police investigator who interviewed
Zimmerman, doubted Zimmermans self-defense claims, but Serinos superiors
dismissed Serinos suspicions about Zimmermans guilt.
18
On March 12, 2012, the
chief of police in Sanford stated that no charges were brought against Zimmerman
because there were no grounds to disprove his account of the events.
19

On March 8, 2012, Martins family and attorneys for the family held a
news conference to create awareness of the homicide and the inaction of local
authorities.
20
Observers speculated that the killing was racially motivated and

6
Matt Gutman & Seni Tienabeso, Orlando Watch Shooting Probe Reveals Questionable Police
Conduct, ABC NEWS (Mar. 13, 2012), http://abcnews.go.com/US/neighborhood-watch-shooting-
trayvon-martin-probe-reveals-questionable/story?id=15907136.
7
Id.
8
Id.
9
Id.
10
Transcript of George Zimmermans Call to Police,
https://www.documentcloud.org/documents/326700-full-transcript-zimmerman.html (last visited
Jan. 24, 2012) [hereinafter Transcript].
11
Gutman & Tienabeso, supra note 6.
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
17
Peter Grier, Trayvon Martin Case: Why Hasnt Zimmerman Been Arrested?, CHRISTIAN
SCIENCE MONITOR, Mar. 28, 2012, http://www.csmonitor.com/USA/Justice/2012/0328/Trayvon-
Martin-case-Why-hasn-t-George-Zimmerman-been-arrested-video.
18
Id.
19
Timeline of Events in Trayvon Martin Case, CNN (June 20, 2012),
http://www.cnn.com/2012/06/12/justice/florida-zimmerman-timeline/index.html [hereinafter
Timeline]. This charging decision was probably the result of the chief of polices understanding of
the statutory immunity provided by SYG. FLA. STAT. ANN. 776.032.
20
See Timeline, supra note 19.
113

reflected widespread racism.
21
Due to the local police departments inaction, the
Justice Department began an investigation into the killing.
22
Because of the
appearance that local authorities were not properly investigating the homicide,
Florida Governor Scott appointed a special prosecutor on March 22, 2012.
23

Meanwhile, public outrage was growing at the failure of police to make an arrest.
24

Protests were organized across the country to bring attention to the Martin killing.
25

On April 11, 2012, after the appointment of the special prosecutor and enormous
public pressure on authorities to make an arrest, Zimmerman was charged with
second-degree murder for killing Trayvon Martin.

Zimmerman pled not guilty.
26
.
27

Sanfords chief of police was eventually fired for his mishandling of Zimmermans
case.
28

Zimmermans trial was set for June 10, 2013,
29
and observers speculated
that the trial and stand your ground hearing would be combined.
30
A stand your
ground hearing allows a defendant in a criminal trial to plead self-defense under

21
Cherry Davis, Trayvon Martin Case Signals Trend of New Racism in America, POLICY MIC,
http://www.policymic.com/articles/7271/trayvon-martin-case-signals-trend-of-new-racism-in-
america (last visited Mar. 17, 2013).
22
23
Id. Scott appointed 4
th
Judicial Circuit States Attorney Angela Corey. Id.
24
A petition for Zimmermans arrest reaches 1 million signatures. Id.
25
Trayvon Martin Protest in LA: Million Hoodie March Calls for Justice (April 4, 2012),
http://www.huffingtonpost.com/2012/04/10/trayvon-martin-protest-la_n_1415208.html (describing
protests in Los Angeles where marchers wore hoodies to show solidarity with Martin); Trayvon
Martin Protests: Demonstrations Nationwide Call for Justice, NY DAILY NEWS , Mar. 17, 2013,
http://www.nydailynews.com/news/national/trayvon-martin-protests-million-hoodie-march-
demonstrations-call-justice-gallery-1.1049189#pmSlide=1 (showing pictures of demonstrations
across Florida, Michigan, and New York); Noah Trister, Miami Heat Protest Trayvon Martin
Case, HUFFINGTON POST (Mar. 23, 2012), http://www.huffingtonpost.com/2012/03/24/miami-
heat-protest-trayvon_n_1376922.htmlhttp://www.cnn.com/2012/06/12/justice/florida-zimmerman-
timeline/index.html (describing the Miami Heat players protest of Martins killing by posing for a
photo wearing hooded sweatshirts and standing with their hands in their pockets).
26
27
Meredith Rutland, Sanford Police Chief Bill Lee Fired In Wake Of Trayvon Martin Case, THE
MIAMI HERALD, June 20, 2012, http://www.miamiherald.com/2012/06/20/2860209/sanford-
police-chief-bill-lee.html.
Activists, students and ardent supporters across Florida and the country held
rallies and marches to push for Zimmermans arrest. They included more
than 1,000 Miami-Dade high school students. In protest, they wore hoodies
and carried Skittles candy, as Trayvon had in his final moments. The Rev. Al
Sharpton held a rally with thousands of supporters in Sanford. Id.
Gene Demby, LeBron James Tweets Picture Of Miami Heat Wearing Hoodies In Solidarity With
Family Of Trayvon Martin, THE HUFFINGTON POST (Mar. 3, 2012, 2:12 PM, updated Mar. 27,
2012, 2:34 PM), http://www.huffingtonpost.com/2012/03/23/lebron-heat-trayvon-
tweet_n_1375831.html.
28
Rutland, supra note 27 (the firing stemmed from the impact of Lees handling of the Trayvon
Martin [case]).
29
Jeff Weiner, George Zimmerman Defense Ponders Request to Combine Stand Your Ground
Hearing with Trial, ORLANDO SENTINEL, Feb. 17, 2013, available at
http://articles.orlandosentinel.com/2013-02-17/news/os-george-zimmerman-stand-your-ground-
trial-20130217_1_george-zimmerman-trayvon-martin-mark-o-mara.
30
Jeff Black, Zimmerman Wont Seek Stand Your Ground Hearing in April, NBC NEWS.COM,
http://usnews.nbcnews.com/_news/2013/03/05/17197493-zimmerman-wont-seek-stand-your-
ground-hearing-in-april?lite (last visited Mar. 17, 2013).
114

SYG law before going to trial.
31
Zimmerman waived his right to a separate stand
your ground hearing that was scheduled for April 2013.
32
If Zimmerman had
appeared at the stand your ground hearing, he could have claimed self-defense and
sought immunity under the statute.
33

The Martin case is particularly disturbing because it appears to be a
racially motivated killing of an innocent teenager.
34
First, Martin was an unarmed
youth walking in a neighborhood where he had every right to be.
35
He had gone to
the store for snacks,
36
an apparently innocent activity. Zimmermans call to police
suggests that Zimmerman found Martin suspicious because he was black.
37
While
talking to the dispatcher, Zimmerman mentioned Martins race at least twice.
38

Zimmerman also seemingly objected to Martins clothing and claimed Martin
looked like he was intoxicated.
39
This suggests racial stereotyping or that
Zimmerman had an implicit racial bias because, reasonably speaking, there isnt
anything particularly suspicious about wearing a sweatshirt with the hood pulled up
while walking in the rain.
40

The second disturbing issue surrounding the Martin shooting is that
Zimmermans actions were not apparently motivated by self-defense, nor were they
necessary to prevent a crime.
41
Rather, Zimmerman seemed to be concerned that

31
FLA. STAT. ANN. 776.012-.013; 776.031-.032; Floridas Stand Your Ground Law, Sammis
Law Firm,
http://www.criminaldefenseattorneytampa.com/PracticeAreas/DomesticViolenceBattery/StandYou
rGroundLaw.aspx (last visited march 17, 2013) (During the evidentiary hearing the trial court
considers the disputed issues of fact and must make a finding under the preponderance of the
evidence standard. The court can either dismiss the charges or allow the prosecution to go
forward.).
32
Id.; see Weiner, supra note 29; Black supra note 30.
33
FLA. STAT. ANN. 776.012-.013; 776.031-.032; George Zimmerman Loses Attempt To End
GPS Monitoring Before Trayvon Martin Trial, CBS NEWS (Dec. 11, 2012),
http://www.cbsnews.com/8301-201_162-57558461/george-zimmerman-loses-attempt-to-end-gps-
monitoring-before-trayvon-martin-trial ([Judge] Nelson has set a trial date for June 10. She can
also set a stand your ground hearing 45 days before trial where Zimmerman can argue it was self-
defense and ask the judge to drop the charges.).
34
Zimmerman repeatedly mentions Martins race in his call to police. Transcript, supra note 10;
Tamara F. Lawson, A Fresh Cut in an Old Wound - A Critical Analysis of the Trayvon Martin
Killing: The Public Outcry, the Prosecutors Discretion, and the Stand Your Ground Law, 23 U.
FLA. J.L. & PUB. POLY 271, 272-72 (2012) (Fundamentally, the Martin killing is a hybrid case
about both race and law, and the governments response to each.).
35
Gutman & Tienabeso, supra note 6 (Martin had been staying at his fathers girlfriends house
during the night of the NBA All-Star game Feb. 26.).
36
Gutman & Tienabeso, supra note 6 (The teenager went out to get some Skittles and a can of ice
tea.).
37
Transcript, supra note 10 (describing Martin, Zimmerman stated, Hes got his hand in his
waistband. And hes a black male.).
38
Id.
39
Zimmerman told the dispatcher, This guy looks like hes up to no good, or hes on drugs or
something. Id.
40
Lawson, supra note 34, at 279 (Trayvon was unarmed, not committing any crime, and was
walking from the store with a bottle of iced tea and candy. It seems the only thing he was doing
that was suspicious, was being - unfortunately for Trayvon, being Black.).
41

The encounter between George Zimmerman and Trayvon Martin
was ultimately avoidable by Zimmerman, if Zimmerman had
remained in his vehicle and awaited the arrival of law enforcement,
or conversely if he had identified himself to Martin as a concerned
115

Martin might be trying to burglarize houses in the neighborhood.
42
While SYG was
designed to provide immunity for self-defensive use of deadly force, Zimmerman
followed and confronted Martin even though Martin posed no physical threat to
him,
43
nor was Martin in Zimmermans castle.
44
Martin would have been equally, if
not more, justified in claiming that he had the right to stand his ground and defend
himself against Zimmermans aggression because Zimmerman targeted and
followed Martin.
45
He approached Martin after he was instructed to stay in his
vehicle.
46
It is probable that a teenager on foot would feel more threatened by an
armed adult in a car who was following him, rather than the reverse. Zimmerman
had the gun. Under SYG law, the question remains, does might make right?

III. SELF-DEFENSE LAW: FROM PAST TO PRESENT

A. A Brief History of Self-Defense Law

The right of a person to use deadly force in self-defense has evolved over
time and reflects the values of the society in which it evolved. Context and history
are key to understanding modern self-defense laws. English common law changed
over the centuries from no right to kill in self-defense
47
to a limited right to kill in
self-defense after retreating.
48
Castle doctrine was established in England as an

citizen and initiated dialog [sic] in an effort to dispel each party's
concern" . . . There is no indication that Trayvon Martin was
involved in any criminal activity.
Police: Trayvon Martins Death Ultimately Avoidable, CNN (May 18, 2012, 11:13 AM) (quoting
Sanford, Florida police documents); Transcript, supra note 10 ([Martin] was just staring . . .
looking at all the houses).
42
Id.; Transcript, supra note 10, (quoting Zimmerman, Hey, weve had some break-ins in my
neighborhood, and theres a real suspicious guy . . . . ).
43
Id.
44
Castle here refers to the traditional use of the term, when a person has the right to defend
himself without first retreating because he is in his home. See State v. James, 867 So.2d 414, 416
(Fla. App. Ct. 2003) (discussing castle doctrine). Zimmerman and Martin were both on the street.
Transcript, supra note 10.
45
FLA. STAT. ANN. 776.012-.013; 776.031-.032; see Transcript, supra note 10
46
Gutman & Tienabeso, supra note 6 (A dispatcher told [Zimmerman] to wait for a police cruiser,
and not leave his vehicle.).
47
The right to kill in self-defense was slowly established, and is a doctrine of modern rather than
medieval law. Joseph H. Beale, Retreat from Murderous Assault, 16 HARV. L. REV. 567, 567
(1903). At early English common law, there was no justification or excuse for homicide. See
Judith E. Koons, Gunsmoke and Legal Mirrors: Women Surviving Intimate Battery and Deadly
legal Doctrines, 14 J. L. & POLY, 617, 626 (2006).
The monarch maintained a monopoly on the use of force. Jason W. Bobo, Following the Trend:
Alabama Abandons the Duty to Retreat and Encourages Citizens to Stand their Ground, 38 CUMB.
L. REV. 339, 343 (2008) (citing BROWN, NO DUTY, infra note 48, at 4 (the state wanted to keep a
monopoly over the resolution of conflict at the level of dispute between individuals); Benjamin
Levin, Note, Defensible Defense?: Reexamining Castle Doctrine Statutes, 47 HARV. J. ON LEGIS.,
524, 528 (2010). [T]he king and his laws are to be the vindices injuriarum, and private persons
are not trusted to take capital revenge of one another. JEANNIE SUK, AT HOME IN THE LAW: HOW
THE DOMESTIC VIOLENCE REVOLUTION IS TRANSFORMING PRIVACY, 58 (2009) (quoting
MATTHEW HALE, HISTORY OF THE PLEAS OF THE CROWN 481 (photo. reprint 2003) (1736).
48
WILLIAM BLACKSTONE, 4 BLACKSTONES COMMENTARIES,
http://www.lonang.com/exlibris/blackstone/bla-414.htm (last visited Apr. 23, 2013) [hereinafter
BLACKSTONE] (For which reason the law requires, that the person who kills another in his own
116

exception to the duty to retreat before using lethal force to self-defend in ones
home.
49
Castle doctrine empowered a person in his home to use deadly force if he

defense, should have retreated as far as he conveniently or safely can, to avoid the violence of the
assault, before he turns upon his assailant). In England, certain limited exceptions to the homicide
prohibition gradually gained ground, though the legal presumption was against the actor claiming
self-defense. RICHARD MAXWELL BROWN, NO DUTY TO RETREAT: VIOLENCE AND VALUES IN
AMERICAN HISTORY AND SOCIETY, 3 (1991) [hereinafter BROWN, NO DUTY] (discussing
BLACKSTONE). English common law was formulated to prevent subjects from confusing self-
defense with the prerogative to kill a fellow subject. Id. (quoting BLACKSTONE). Justified
homicide, a killing that was not deemed wrongful, was limited to those authorized by writ from the
King. Levin, supra note 47, at 528 The Kings writ only sanctioned the killing of criminals who
could not be taken without force. Id. (quoting Beale, supra note 47, at 567). Hence, only killings
in service of the crown were justified. Id. Homicides committed in self-defense were excused
rather than justified, attaching a degree of guilt to the killing. Id.(citing RICHARD MAXWELL
BROWN, NO DUTY TO RETREAT 4 (1991); BLACKSTONE, supra. In order to qualify for a kings
pardon on the basis of a self-defensive killing, the killer was required to retreat to the wall prior
to the use of force and show that the killing was necessary for self-defense. BLACKSTONE supra
(But if A upon a sudden quarrel assaults B first, and upon Bs returning the assault, A really and
bona fide flees; and being driven to the wall, turns again upon B and kills him; this may be se
defendendo according to some of our writers); BROWN, NO DUTY, supra , at 3 (quoting
FREDERICK S. BAUM & JOAN BAUM, LAW OF SELF-DEFENSE 5-9 (1970)) (Before the court in the
English common-law tradition would countenance killing in self-defense two essential tests had to
be met: that of retreat or avoidance and that of reasonable determination of necessity.). This
retreat requirement demonstrates the English ideal of civility and the rule of law over violence.
Jason W. Bobo, Following the Trend: Alabama Abandons the Duty to Retreat and Encourages
Citizens to Stand their Ground, 38 CUMB. L. REV. 339, 343 (2008) (citing BROWN, NO DUTY,
supra,, at 20); Levin, supra, note 47, at 530 (discussing BLACKSTONE ). English government
intended to prevent murder and adjudicate disputes in the courts, resulting in low homicide rates.
BROWN, NO DUTY, supra, at 4-5.
49
Semaynes case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K.B. 1604), available at
http://esurveillance.ist.psu.edu/SemaynesCase1604.pdf; Beale, supra note 44, at 575-76
(citing 2 P. & M. Hist. 476). While the English held tightly to the notion of retreat before
employing deadly force in self -defense, the castle doctrine was an early exception to the
retreat rule in England. See supra notes 47-48; Semaynes case, 5 Co. Rep. 91a, 91b
(K.B. 1604). In 1604, Semaynes case affirmed Castle Doctrine.
[T]he house of everyone is to him as his castle and fortress, as well as for his
defence against injury and violence, as for his repose; and although the life
of a man is a thing precious and favoured in law;if thieves come to a
mans house to rob him, or murder, and the owner or his servants kill any of
the thieves in defence of himself and his house, it is not a felony, and he
shall lose nothing.
Id. In ones home, a person who was attacked had the right to self-defense without first retreating.
Beale, supra note 47, at 574-75 (citing 2 P. & M. Hist. 476). English culture had embraced the
belief that a mans home is his castle and the home was, therefore, afforded greater protection in
the law. Levin, supra note 47, at 530. [I]n the home, the tenderness for peace of which
Blackstone spoke was overridden by tenderregard to the immunity of a mans house. SUK,
supra note 47, at 59 (2009) (quoting BLACKSTONES COMMENTARIES).
The castle/home was the first realm in which a man could stand his ground in self-defense. The
state monopoly on violence yielded when a man was attacked in his home because of the high
regard in which English society held land and the home. Cf. SUK, supra note 47, at 59 (2009).
American law adopted the castle doctrine as it was applied in England. People v. Tomlins, 107
N.E. 496, 97 (N.Y. 1914) (The homicide occurred in the defendant's dwelling. It is not now and
never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there,
he may stand his ground and resist the attack. He is under no duty to take to the fields and the
highways, a fugitive from his own home.).
117

felt threatened, without first retreating.
50
American courts generally, however, did
not retain the duty to retreat prior to using self-defensive deadly force.
51
As
Americans settled the west, judges in the western states began to make the stand
your ground rule the common law.
52
Even with the decline of the duty to retreat,
castle doctrines notion of the home as a unique refuge remained.
53

The shift in self-defense law, from the duty to retreat to stand your ground,
revealed a shift in fundamental civic and cultural values. The centuries-long
English legal severity against homicide was replaced in our country by a proud new
tolerance for killing in situations where it might have been avoided by the duty to
retreat.
54
The value of civility was supplanted by the masculinity of the true
man.
55
Erwin v. State gave America the true man standard of self-defense,
meaning that a true man need not retreat from a threat.
56
Defendant, Erwin, was a
landowner leasing farmland to his son-in-law.
57
The two men had a disagreement
about who controlled the shed that sat between their houses.
58
They argued about
control of the shed and the defendant, who was in the shed and had a pistol, warned
his son-in-law not to come closer.
59
The son-in-law had an ax in his hands and
came towards the defendant within striking distance.
60
The defendant fatally shot
his son-in-law.
61
The Ohio Supreme Court found the killing justified and held that
[i]f a thief assaults a true man either abroad or in his house to rob him or kill him,
the true man is not bound to give back, but may kill the assailant, and it is not a

50
Semaynes case, 5 Co. Rep. 91a, 91b.
51
The movement away from the retreat duty originated with the ideas of Englishmen Sir Michael
Foster. BROWN, NO DUTY, supra note 48, at 6-7. Foster wrote in 1762 that the injured party may
repel force by force in defence of his person. Id. at 6. East introduced the notion that a man need
not retreat before using deadly force in self-defense: i.e. a man may stand his ground. Id. But
England was not substantially influenced by the idea of standing ones ground and ultimately
retained the duty to retreat. Id. at 7, (citing IAN MCLEAN AND PETER MORRISH, HARRIS,
CRIMINAL LAW 455 (22nd ed. 1973)). American Joel Prentiss Bishop wrote the first text on
American law underived from English books. BROWN, NO DUTY, supra note 48, at 7 (citing JOEL
PRENTISS BISHOP, NEW COMMENTARIES ON THE CRIMINAL LAW (1856); H.W. HOWARD KNOTT,
BISHOP, JOEL PRENTISS ; DICTIONARY OF AMERICAN BIOGRAPHY, II, 295-96). Bishop
vehemently argued for the stand your ground rule adopted from Foster and East as the law of the
land in America. BROWN, NO DUTY, supra note 48, at 7-8 (quoting Bishop, if a man murderously
attacked by another flies instead of resisting, eh commits substantially [the] offense of misprision
of felony.). He went so far as to suggest that retreating from murderous attack is itself a criminal
offense. BROWN, NO- DUTY, supra note 48, at 8.
52
BROWN, NO DUTY, supra note 48, at 8 (state after state saw its highest court repudiate the duty
to retreat in favor of the doctrine of standing ones ground).
53
See generally D. Benjamin Barros, Home as a Legal Concept, 46 SANTA CLARA L. REV. 255
(2006) (discussing the significance of the concept of the home).
54
BROWN, NO DUTY, supra note 48, at 5.
55
Erwin v. State, 29 Oh. St. 186, 195 (1876) (If a thief assaults a true man either abroad or in his
house to rob or kill him, the true man is not bound to give back, but may kill the assailant, and it is
not a felony.).
56
Id.
57
Id. at 192.
58
Id. at 192-93.
59
Id. at 193.
60
Id.
61
Id.
118

felony.
62
The true man doctrine holds that a man who is threatened may stand his
ground and need not retreat.
63

In Runyon v. State, the Indiana Supreme Court also upheld the no retreat
rule, explaining that the American mind is opposed to retreating, even to save a
life.
64
The decision equated retreat with cowardice, suggesting that retreat is un-
American.
65
The trend in American law was geared towards more freedom to use
deadly force.
66
A number of state supreme court cases adopted the no retreat rule in
western and frontier states,
67
resulting in an eventual majority embracing no
retreat.
68
This no retreat ethic is arguably the precursor to todays stand your ground
movement that commenced with the passage of Floridas 2005 SYG law.
69

B. Floridas Law Prior to Stand Your Ground

1. Floridas Old Retreat Rule

To understand how Floridas law has changed since the passage of SYG in
2005, an explanation of the earlier law is necessary. Prior to the passage of SYG,
courts in Florida required retreat before using lethal force in self-defense.
70

Florida, in accord with a strong minority of jurisdictions throughout the country,
has imposed . . . [a] requirement that the defender against a violent attack has a duty
to avoid the difficulty and retreat from the affray, before using deadly force.
71
The
rationale for the retreat rule was articulated by American courts as recognizing the
value of human life.
72
Retreat was not required before using non-deadly force

62
Id.
63
Id. at 196 (there are cases in which the man may, without retreating, oppose force to force, even
to the death).
64
Runyan v. State, 57 Ind. 80, 84 (1877) (Indeed, the tendency of the American mind seems to be
very strongly against the enforcement of any rule which requires a person to flee when assailed, to
avoid chastisement or even to safe human life).
65
BROWN, NO DUTY, supra note 48, at 17.
66
Steven P. Aggergaard, Criminal Law-Retreat from Reason: How Minnesotas New No-Retreat
Rule Confuses the Law, 29 WM. MITCHELL L. REV. 657, 660 (2002) (As crime rates rose in the
latter half of the 20
th
century, Americans increasingly voiced a right to self-defense as debate
intensified over levels of force available to protect self, family, and home.).
67
BROWN, No Duty, supra note 48 (state after state saw its highest court repudiate the duty to
retreat in favor of the doctrine of standing ones ground).
68
Id. at 682 (discussing State v. Glowacki, 630 N.W.2d 392 (Minn. 2001)) (the court adopted a
new no-retreat rule and professed to join a majority of states that do not require flight from ones
home when faced with attack from a co-resident.); Cf. Redondo v. State, 380 So. 2d 1107, 1110
(Fla. Dist. Ct. App. 1980) (explaining that retreat jurisdictions are the minority).
69
Cf. Id. at 660 (2002) (As crime rates rose in the latter half of the 20
th
century, Americans
increasingly voiced a right to self-defense as debate intensified over levels of force available to
protect self, family, and home.)
70
Redondo, 380 So. 2d at 1110 (Florida, in accord with a strong minority of jurisdictions
throughout the country, has imposed an additional requirement that the defender against such a
violent attack has a duty to avoid the difficulty and retreat from the affray, before using deadly
force, if he can do so consistent with his own safety without exposing himself to death of great
bodily harm.).
71
See, e.g,. Redondo, 380 So. 2d at 1110; Reimel v. State, 532 So. 2d 16, 18 (Fla. Dist. Ct. App
1988) (requiring retreat retreat to the wall before using deadly force).
72
Weiand v. State, 732 So. 2d 1044 (Fla. 1999) (quoting Hedges v. State, 172 So. 2d 824 (Fla.
Dist. Ct. App. 1965)) (In instructing the jury on the law of self-defense, the court informed the
119

because the policy underlying the retreat rule was preservation of life, and non-
deadly force is, by its definition, not a threat to life.
73

2. Floridas Old Castle Doctrine

Florida recognized the castle doctrine exception to the retreat duty prior to
using deadly force in self-defense.
74
A man is under no duty to retreat when
attacked in his own home. His home is his ultimate sanctuary.
75
Castle doctrine
was narrowly construed by Florida courts prior to 2005
76
in that the privilege was
limited to ones own home and was not applicable to a guest in anothers home.
77

The doctrine did, however, apply to a person at work while lawfully engaged in his
occupation at a place of business owned by his employer.
78
Florida courts refused
to include cars within castle doctrine, on the basis that cars provide ample retreat
opportunity.
79
The castle doctrine was meant to preserve life and maintain the home
as a sanctuary.
80
If one flees her home, usually a place of refuge, she is arguably in
more danger than before she took flight; therefore, allowing a victim to stand her
ground and defend herself is more likely to preserve her life.
81

jury that the defendant was required to use all reasonable means within his power and consistent
with his own safety to avoid the danger and avert the necessity of taking a human life.).
73
Cf. Redondo, 380 So. 2d at 1110; Lydia Zbreznj, Floridas Controversial Gun Policy: Liberally
Permitting Citizens to Arm Themselves and Broadly Recognizing the Right to Act in Self-Defense,
13 FLA. COASTAL L. REV. 231, 240-41 (2012) (The policy justification for imposing a duty to
retreat was the importance of preserving human life).
74
State v. James, 867 So.2d 414, 416 (Fla. Dist. Ct. App. 2003).
75
James, 867 So.2d at 416, (citing Weiand, 732 So. 2d at 1049).
76
Id. (Florida courts have defined the castle doctrine as a privilege one enjoys in ones own
dwelling place.).
77
See, e.g. id. at 416-17 (granting castle doctrine protection to a social guest or visitor would
necessarily grant the guest or visitor innumerable castles wherever he or she is authorized to visit.
That, in turn, would expand the privilege of non-retreat and encourage the use of deadly force. We
. . . decline to extend the castle doctrine privilege to a temporary social guest or visitor in the
home of another.).
78
Redondo, 380 So.2d at 1108.
79
Baker v. State, 506 So.2d 1056, 1059 (Fla. Dist. Ct. App. 1987).
80
Cf. James, 867 So.2d at 417 (quoting Weiand, 732 So. at 1052) (The Florida Supreme Court
has said that the privilege of non-retreat from the home stems not from the sanctity of property
rights, but from the time-honored principle that the home is the ultimate sanctuary.).
81
Cf. id.; Weiand , 732 So. 2d at 1049 (quoting New York v. Tomlins, 107 N.E. 496, 197-98
(1914) ).
It is not how and has never been the law that a man assailed in his own
dwelling is bound to retreat. If assailed there, he may stand his ground and
resist the attack. He is under no duty to take to the fields and the highways, a
fugitive from his own home. More than 200 years ago it was said by Lord
Chief Justice Hale: In case a man is assailed in his own house, he need not
flee as far as he can, as in other cases of se defendendo, for he hath the
protection of his house to excuse him from flying, as that would be to give up
the protection of his house to his adversary by flight. Flight is for sanctuary
and shelter, and shelter, if not sanctuary, is in the home. Id.
120

3. Floridas Old Reasonable Belief Standard

While Floridas old law narrowly defined one's castle,
82
it also required
that use of deadly force be reasonable.
83
Floridas old reasonable belief standard
placed meaningful limits on an individuals use of deadly force in self-defense.
84

Before it was amended in 2005, Florida law only allowed the use of deadly force if
the actor had a reasonable belief that the force [was] necessary to prevent
imminent death or great bodily harm . . . or to prevent the imminent commission of
a forcible felony.
85
This reasonableness requirement applied to the use of force
whether the actor was at home and could employ the defense of habitation or was in
public and had retreated to the wall.
86
In either instance, the actor had to have a
reasonable belief that the force was necessary to prevent imminent harm to himself
or to prevent a forcible felony.
87

In Quaggin v. State, a Florida court clarified that a homeowner using
deadly force did not need to prove beyond a reasonable doubt that a felony was in
fact being committed.
88
Rather, the homeowner had to prove beyond a reasonable
doubt that he reasonably believed a burglary was being committed, that he
reasonably believed the degree of force was needed, and that the crime could only
be avoided through the use of force.
89
Reasonable belief in its necessity had to
precede the use of deadly force.
90

Before 2005, Floridas self-defense law was in the majority in requiring
that the use of deadly force in self-defense be reasonable,
91
and it was in the

82
Id. (limiting castle doctrine to a persons own home); Baker, 506 So. 2d at 1059 (excluding
vehicles from castle doctrine).
83
Quaggin v. State, 752 So.2d 19, 25-26 (Fla. Dist. Ct. App. 2000) (there had to be proof beyond
a reasonable doubt that Quaggins belief about whether a burglary was being committed and about
the necessity of using deadly force was unreasonable).
84
Cf. id. (discussing the standard of proof for a reasonable use of deadly force).
85
Wyatt Holliday, The Answer to Criminal Aggression is Retaliation: Stand Your Ground Laws
and the Liberalization of Self-Defense, 43 U. TOL. L. REV. 406, 414 (citing FLA. STAT. ANN
776.012) (internal quotations omitted).
86
Weiand, 732 So. 22 at 1057, n.5, (quoting Falco v. State, 407 So. 2d 203, 208 (Fla. 1981))
(explaining that use of deadly force under castle doctrine still had to be reasonable under the
circumstances).
87
See Quaggin, 752 So. 2d at 25-26.
88
Id. (the evidence need not have established beyond a reasonable doubt that the boys were
committing burglary).
89
Id.
In deciding whether defendant was justified in the use of force likely to cause
death or great bodily harm, you must judge him by the circumstances by
which he was surrounded at the time the force was used. The danger facing
the defendant need not have been actual; however, to justify the use of force
likely to cause death or great bodily harm, the appearance of danger must
have been so real that a reasonably cautious and prudent person under the
same circumstances would have believed that the danger could be avoided
only through the use of that force. Based upon appearances, the defendant
must have actually believed the danger was real.
Id.
90
Cf. id.
91
Id. at 23. Caroline Forell, Whats Reasonable?: Self-Defense and Mistaken in Criminal and
Tort Law, 14 LEWIS & CLARK L. REV. 1401, 1403 (2010) (In a strong majority of American
jurisdictions, a defendant who is not an aggressor in an encounter is justified in using deadly force
121

minority in requiring retreat before using deadly force in self-defense outside ones
castle.
92
The passage of SYG in 2005 pushed Florida to the opposite end of the
spectrum.
93
Retreat was no longer a prerequisite for using deadly force,
94
nor in
some instances, did deadly force have to be reasonable.
95
As discussed below, two
presumptions created by the statute eliminate the requirement that the use of force
be reasonable.
96
This was a radical departure from the traditional self-defense
law.
97

C. Floridas 2005 Stand Your Ground Law

In 2005, the Florida legislature barbarized Floridas self-defense law at the
urging of the NRA.
98
SYG removed the traditional safeguards against inappropriate
use of deadly force.
99
One SYG proponent suggested that the law creates the
unfettered right to shoot first and ask questions later.
100
The changes were
implemented in two ways. The use of force portions of the law were amended,
and two new sections were added, creating powerful presumptions and immunities
for people who exercise their right to use deadly force under the statute.
101
The
effects of the law are explored below.

1. Stand Your Ground Eliminated the Duty to Retreat

The most obvious change wrought in the law, and the one from which the
popular name derives, is the rejection of the duty to retreat.
102
A person who
reasonably believes that [deadly] . . . force is necessary to prevent imminent death

against another person if he honestly and reasonably believes . . . he is in imminent or immediate
danger . . . and . . . the use of deadly force is necessary).
92
See generally Florida Legislation-The Controversy Over Floridas New Stand Your Ground
Law-Fla. Stat. 776.013, 33 FLA. ST. U. L. REV. 351 (2005); Michael, supra note 2, at 200-201
(2006) (citing Erwin v. State, 29 Ohio St. 186 (1876)); H.B. 249, amending FLA. STAT.
776.012(2) (2005)) (since the late nineteenth century, the duty to retreat has eroded as most
jurisdictions have begun to view it as an unreasonable burden on societal notions of courage and
dignity. Florida joins these jurisdictions and now allows a person to stand his ground when
attacked and to meet force with force). See supra note 70.
93
See generally Michael, supra note 2.
94
FLA. STAT. ANN. 776.012.
95
96
97
See Forell, supra note 91,, at 1403 (discussing that a strong majority of American jurisdictions
require a reasonable use of force in self-defense). See generally Stuart Green, Castles and
Carjackers: Proportionality and the use of Deadly Force in Defense of Dwellings and Vehicles,
1999 U. ILL. L. REV. 1, 6 (1999) (discussing the need for a proportionality requirement in use of
deadly force).
98
Michael Ono, NRA Pushed for Stand Your Ground Laws, ABC NEWS (Mar. 31, 4:33 PM),
http://abcnews.go.com/blogs/politics/2012/03/nra-pushed-for-stand-your-ground-laws (The pro-
gun group championed the passage of the original law in Florida back in 2004 and lobbied to pass
similar legislation in other states, according to the Center for Public Integrity).
99
Cf. Forell, supra note 91, at 1403 (explaining that a strong majority of American jurisdictions
require a reasonable use of force in self-defense). See generally Green, supra note 97, at 6
(discussing the need for a proportionality requirement in use of deadly force).
100
Michael B. de Leeuw, The (New) Judicial Federalism: State Constitutions and the Protection of
the Individual Right to Bear Arms, 39 FORDHAM URB. L.J. 1449, 1490 (2012).
101
FLA. STAT. ANN. 776.012-.013; 776.031-.032; Holliday, supra note 85, at 416.
102
FLA. STAT. ANN. 776.012, 776.031.
122

or great bodily harm to himself or herself or another or to prevent the imminent
commission of a forcible felony or who otherwise acts pursuant to 776.013 is
justified in using deadly force without first retreating.
103
Under the 2005 law, [a]
person does not have a duty to retreat if the person is in a place where he or she has
a right to be.
104
This is a departure from previous Florida law requiring retreat.
105

The Florida legislature intentionally dispensed with the retreat duty.
106
The
responsible legislative committee explained, [this bill] abrogates the common law
duty to retreat when attacked before using [deadly] force.
107
The legislature
intentionally empowered Floridians to act with less restraint when using deadly
force.
108

The adoption of SYG represents a shift in priorities for the State of Florida.
Floridas previous law mirrored Professor Beales stance that [n]o killing can be
justified . . . when the assailed can defend himself by the peaceful though often
distasteful method of withdrawing to a place of safety.
109
Requiring retreat before
employing deadly force is one way to show that a killing was necessary.
110
Another
rationale for requiring retreat is the traditionally high value society placed on human
life and the understanding that requiring retreat would prevent the unnecessary
taking of a life.
111
By rejecting the retreat rule, Florida has surrendered one value in
place of another. The right to use deadly force has supplanted the singular value
that was formerly assigned to human life. Discarding the duty to retreat means that
the law recognizes a provoked killing as a lesser evil than a person retreating from
provocation because the killing goes unpunished, even if it is unnecessary.
112
Thus,
the no-retreat rule places one persons honor above another persons life,
113

distorting traditional American values.
114

103
FLA. STAT. ANN. 776.012-.013.
104
105
James, 867 So. 2d at 415 (affirming the duty to retreat under Florida law).
106
Holliday supra note 85, at 418, (quoting Fla. S. Judiciary Comm. Staff Analysis and Economic
Impact Statement, S. 19-CS/CS/SB 436, 1st Reg. Sess., at 4 (Fla. 2005)).
107
Id.
108
Id.
109
Beale, supra note 47, at 580; James, 867 So. 2d at 417, (quoting State v. Bobbitt, 415 So. 2d
724, 728 (Fla. 1982)) (human life is precious, and deadly combat should be avoided if at all
possible when imminent danger to oneself can be avoided).
110
Cf. id.
111
See Zbreznj, supra note 73.
112
Cf. Elizabeth B. Megale, Deadly Combinations: How Self-Defense Laws Pairing Immunity with
a Presumption of Fear Allow Criminals to Get Away with Murder, 34 AM. J. TRIAL ADVOC.
105, 115 (2010) (citing Michael, supra note 2, at 200; Weiand , 732 So. at1049 (quoting Frazier v.
State, 681 So. 2d 824, 825 (Fla. Dist. Ct. App. 1996)) (The law has always recognized that, where
no safe method of retreat is available, a person may meet force with force in defense of an attack.
Now anytime one claims to perceive a threat, that individual would be justified in reacting
violently; they would have little incentive to diffuse the situation by retreating.).
113
Christine Catalfamo, Stand Your Ground: Floridas Castle Doctrine for the Twenty-First
Century, 4 Rutgers L.J. & Pub. Poly 504, 534 (2007) (the southern gentleman should not be
forced to surrender his privacy and dignity to one who would break the law).
114
Cf. Megale, supra note 112 at 116 (discussing the American valuation of life and the
DECLARATION OF INDEPENDENCE PARA 2 (U.S. 1776)).
123

2. The Castle Doctrine and Stand Your Ground

A similar criticism can be made of SYGs reinvention of castle doctrine.
Floridas 2005 law distorts the castle doctrine far beyond its original purpose
because the castle is enlarged to any place the person has the right to be.
115
The
SYG statute expands the castle doctrine to vehicles, temporary structures, and
guests visiting other homes - a sharp departure from the earlier law.
116
The old
castle doctrine was merely a limitation on the duty to retreat before using self-
defensive deadly force.
117
Under the old law, use of deadly force could only be
employed in ones castle if it was reasonable.
118
The following are jury instructions
that explain the standard for reasonable use of force in self-defense in ones home.
In deciding whether defendant was justified in the use of force
likely to cause death or great bodily harm, you must judge him by
the circumstances by which he was surrounded at the time the
force was used. The danger facing the defendant need not have
been actual; however, to justify the use of force likely to cause
death or great bodily harm, the appearance of danger must have
been so real that a reasonably cautious and prudent person under
the same circumstances would have believed that the danger could
be avoided only through the use of that force. Based upon
appearances, the defendant must have actually believed the danger
was real.
119

In an unprecedented move by the Florida legislature in adopting SYG, the above
reasonableness requirement for use of deadly force was eradicated.
120
The bill

115
Ross, supra note 5, at 2 (The retreat line is moving and expanding beyond the castle and into
the streets. The retreat element is losing its significance and is being abrogated by a stand your
ground anywhere you have a right to be doctrine.); Sharon Finegan, Watching The Watchers:
The Growing Privatization Of Criminal Law And The Need for Limits On Neighborhood Watch
Associations, 8 U. MASS. L. REV. 88, 120 (2013) (citing Ross, supra at 2).
(a) Dwelling means building or conveyance of any kind, including
an attached porch, whethertemporary or permanent, mobile or
immobile, which has a roof over it, including a tent, and is
designed to be occupied by people lodging therein at night.
(b) Residence means a dwelling in which a person resides either
temporarily or permanently or is visiting as an invited guest.
(c) Vehicle means a conveyance of any kind, whether or not
motorized, which is designed to transport people or property.
FLA. STAT. ANN. 776.013(5).
116
James, 867 So.2d at 416 (citing Weiand, 732 So. 2d at 1049) (The duty to retreat has an
exception, known as the castle doctrine, which espouses that one is not required to retreat from
ones residence, or ones castle, before using deadly force in self-defense, so long as the deadly
force is necessary to prevent death or great bodily harm.).
117
Id.
118
Id.; Quaggin, 752 So.2d at 25-26 (holding that reasonable belief depends on the circumstances
and not the victims state of mind).
119
Quaggin, 752 So. 2d at 23.
120
FLA. STAT. ANN. 776.013(4) (A person who unlawfully and by force enters or attempts to
enter a persons dwelling, residence, or occupied vehicle is presumed to be doing so with the intent
to commit an unlawful act involving force or violence); Koons, supra note 47, at 618 n.3 (citing
S.B. 436, 107
th
Leg. Reg. Sess.) (Florida joined a number of states that have abrogated the duty to
retreat outside of a dwelling, but was the first to adopt a system of statutory presumptions
justifying the use of deadly force and immunities from civil action and criminal prosecutions
124

created non-rebuttable presumptions, discussed below, that replaced the
reasonableness and necessity requirements that acted as safeguards against
unnecessary use of deadly force in the old law.
121

3. Reasonable Belief/Presumption and Stand Your Ground

The presumptions created by SYG can produce absurd and lethal results.
122

Under the old law, an actor who used lethal force in self-defense had to prove that
the force was necessary and reasonable.
123
SYG largely dispenses with the
requirement that deadly force be reasonable and replaces it with conclusive
presumptions.
124
The 2005 law creates two presumptions that work together to
justify homicides that would not have been justified under the old law.
125
One
presumption pertains to the persons state of mind who is using force; the other
presumption pertains to the state of mind of the criminal.
126
Presumption #1
provides that
A person is presumed to have held a reasonable fear of imminent
peril of death or great bodily harm to himself or herself or another
when using defensive [deadly] force if:
(a) The person against whom the . . . force was used was . . .
forcefully entering, or had unlawfully and forcibly entered, a
dwelling, residence, or occupied vehicle, or if the person had
removed or was attempting to remove another against that
persons will . . . ; and
(b) The person who uses . . . force knew or had reason to believe
that an unlawful and forcible entry or unlawful and forcible act
was occurring or had occurred.
127

Presumption #2 states, [a] person who unlawfully and by force enters or attempts
to enter a persons dwelling, residence, or occupied vehicle is presumed to be doing
so with the intent to commit an unlawful act involving force or violence.
128
The
legislature intended to create presumptions that are non-rebuttable.
129
The

where force is authorized.); See Hair v. State, 17 So. 3d 804, 806 (Fla. Dist. Ct. App. 2009) (The
statute makes no exception from the [SYG] immunity when the victim is in retreat at the time
defensive force is employed.).
121
See Michael, supra note 2, at 201 (discussing the effects of SYGs presumptions).
122
See generally Megale, supra note 112, at 105-120, for a discussion of the problems with SYGs
presumptions.
123
Quaggin, 752 So. 2d at 23 (the appearance of danger must have been so real that a reasonably
cautious and prudent person under the same circumstances would have believed the danger could
be avoided only through the use of force).
124
125
FLA. STAT. ANN. 776.013. Cf. Megale, supra note 112, at 116 (Overly-broad Stand Your
Ground statutes place lives in danger because a person is permitted to harm, or even kill, another
before considering whether an actual threat exists.).
126
127
FLA. STAT. ANN. 776.013(1).
128
FLA. STAT. ANN. 776.013(4).
129
Michael, supra note 2, at 201; FL Staff An., S.B. 436, 2/10/2005, Florida Senate Staff Analysis,
S.B. 436, 2/10/2005
The practical effects of this section include: Eliminating the questions of fact
regarding whether a person had a reasonable belief that the use of deadly
force was necessary - the presumption requires that the jury find that when he
or she uses deadly force he or she is necessarily in reasonable fear to that
125

committee report indicates that the presumptions created by the law are conclusive
and that when the laws requirements are met, there is no question of fact for the
jury in terms of reasonableness or necessity in the use of deadly force.
130
Conclusive
presumptions are highly suspect.
131

The conclusive presumption is not really a procedural device at
all. Rather it is a process of concealing by fiction a change in the
substantive law. When the law conclusively presumes the
presence of B from A, this means that the substantive law no
longer requires the existence of B in cases where A is present,
although it hesitates to say so forthrightly.
132

Conclusive presumptions create problems in the law because if the existence of a
fact is presumed, the law makes a final determination of what the facts are, whether
or not the fact in question actually exists.
133
Under SYG, it is conclusively
determined that if the elements of the law are met, the person was justified in her
actions.
134
These conclusive presumptions substantively change the law in an
indirect, but profound, way.
The implications of these presumption provisions are staggering. The
actual intent of the person entering a vehicle or building is rendered irrelevant and
the actual state of mind of the person using deadly force is also irrelevant in an
analysis of whether a killing is justified. Reasonableness and necessity have
traditionally been required to justify the use of deadly force.
135
Indeed, it is difficult
to imagine a civilized society in which people are allowed to kill one another
without having to prove that the killing was unavoidable. Certainly, the mark of a
civilized society is respect for life.
136
Yet, Florida courts have held that deadly force
may be used even if other [less extreme] means of self-protection are available,
and . . . even if the attacker is unarmed.
137
Thus, Floridas SYG law has established
the right to kill with impunity under some circumstances, and other states are
following Floridas lead.
138

extent . . . The intent to commit an unlawful act involving force or violence
will be presumed to be true, not a question of fact. Id.
130
Id. FL Staff An., S.B. 436, 2/10/2005, Florida Staff Analysis, S.B. 436, 2/10/2005; See
Michael, supra note 2 at 201, n.20 (quoting Fla. S. Rep. No. 107-436, 6pt. III, at 6 (2005)
(Judiciary Rep.) (Legal presumptions are typically rebuttable. The presumptions created by the
committee substitute, however, appear to be conclusive.).
131
Megale, supra note 112, at 108, n.24 (citing Tot v. United States, 319 U.S. 463, 467 (1943)) (If
a statutory presumption cannot be rebutted or proof offered against it, then the rationality of the
connection can never be questioned [as required by Tot v. U.S.] Thus, an irrebuttable presumption
is necessarily unconstitutional.).
132
Michael, supra note 2, at 204 (quoting FLEMING JAMES, JR. & GEOFFREY C. HAZARD, JR.,
CIVIL PROCEDURE 7.9, at 248 (1st ed. 1965)).
133
Cf. Michael, supra note 2 at 204 (a conclusive presumption that extends to the justifiable use
of deadly force to these circumstances [Quaggin facts] conceals a change in the elements of self-
defense that now allows for deadly force to be used in protection of property) (emphasis
added).
134
FLA. STAT. ANN 776.013; see supra note 129-130.
135
Quaggin, 752 So. 2d at 23; see supra note 123.
136
Cf. Megale, supra note 112, at 116.
137
Pearl Goldman, Criminal Law: 2007-2010 Survey of Criminal Law, 35 NOVA L. REV. 95, 107
(citing McWhorter v. State, 971 So. 2d 154 (Fla. Dist. Ct. App. 2007)).
138
See infra note 318.
126

These presumptions can produce tragic outcomes. One illustrative
scenario comes to mind from a conversation with a colleague.
139
People in cities
often live in apartments that are virtually indistinguishable from one another.
Imagine that an intoxicated resident mistakenly forces his way through a door into
the wrong apartment and passes out on the couch. This intruder is likely not a
danger to anyone but himself. He is devoid of criminal intent and the lawful
resident knows him and is not in fear for her safety because she realizes his mistake.
Under Floridas SYG law, the resident could shoot and kill the intruder with
impunity because her state of mind, as well as the intruders state of mind, are
conclusively presumed.
140
There is, consequently, no question of fact for the jury to
decide.
141
The killing is legally justified even if the killer is motivated by racism or
malice. The law opens the door to race-motivated killings without legal
consequences.
142
Human life has been rendered subordinate to a persons right to
use deadly force, regardless of whether the use of force is justified or necessary.
143

4. Conclusive Presumptions, Immunity, and Stand Your Ground

SYGs grant of immunity to killers shows disregard for the value of human
life. A person who uses force as permitted [by this law] is justified . . . and is
immune from criminal prosecution and civil action. . . . A law enforcement agency
may . . . [investigate] the use of force . . . but may not arrest the person for using
force unless it determines . . . that the force . . . used was unlawful.
144
A person
using force as sanctioned under the statute cannot be arrested, prosecuted or sued,
regardless of the motivation, reasonableness, or necessity of her actions.
145

Significantly, under SYG, a private person who shoots someone has greater

139
Tamara Martin shared this anecdote with me. After coming up with this hypothetical, a real
shooting was in the news, disturbingly similar to the apartment scenario. A teenage boy sneaked
out of his house and consumed alcohol. When he went home, he entered the wrong house and was
shot and killed. Claudine Zap, Teen Fatally Shot when he Mistakenly Went into the Wrong House,
YAHOO NEWS (Mar. 19, 2013), http://news.yahoo.com/blogs/lookout/teen-fatally-shot-mistakenly-
walked-wrong-house-163650001.html.
When he returned around 2 a.m. he slipped into the house he thought was his.
Friends said he had been drinking and mistook his neighbors similar house
two doors down for his own and climbed in through the back window. . . .
Police are continuing to investigate the shooting, but Virginia law gives wide
latitude to people who fear for their safety when someone breaks into their
homes.
Id.
140
FLA. STAT. ANN. 776.013 ; see supra note 129.
141
Id.
142
Ross, supra note 5, at 35 (These new statutes present potential danger for society at large, but
they particularly endanger racial minorities.). Id. at 36 (the law has as long history for creating
pretexts for using deadly force in cases where racial bias or personal feuds exist).
143
Cf. Ross, supra note 5, at 42 (citing Granger v. State, 13 Tenn. 459 (1830)) ([Stand Your
Ground] implies that innocent people are expendable as long as fearful people are reasonable
when they kill.).
144
FLA. STAT. ANN. 776.032. See Lawson, supra note 34, at 287 n.50 (citing Dennis v. State, 51
So. 3d 456, 462 (Fla. 2010)) (discussing that FLA. STAT. ANN. 776.032(1) expressly grants
defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the
use of legally justified force.).
145
Id.
127

immunity than a police officer who shoots someone while on the job.
146
A law
enforcement officer cannot use deadly force in a non-deadly situation.
147
Police
officers are prohibited by the Fourth Amendment from using excessive deadly
force.
148
And, when a police officer uses deadly force, the incident is investigated.
149

In contrast, private citizens are not restrained by the Fourth Amendment,
150
and
SYG provides wide broad immunity against investigation and prosecution.
151

SYG grants broad powers to private citizens;
152
evaluating their impact is
crucial to understanding the law. Floridas old law, like traditional American law,
placed a relatively high value on human life.
153
The 2005 law instead places great
freedom and power in the hands of people who use deadly force at the expense of
protecting human life.
154
SYG as a self-defense law theoretically seeks to justify
homicides that fall within the statute.
155
While American law lacks consensus on the
concept of justification,
156
one widely accepted formulation is that a killing is
justified when it is the lesser evil.
157
Avoiding the greater harm lies at the heart of
the justification.
158
Criminal law expert Stuart Green explains that [t]he decisions
a legal regime makes regarding its justified homicide rules, ultimately, will reflect
deeply held societal values.
159
Justified homicide dispenses with liability for the
actor because society deems the harm committed to be less egregious than the harm
she faced.
160
SYG treats the killing of almost any intruder into a car or a house as
the ultimate lesser evil because the law definitively presumes that killing an intruder
is almost always justified.
161

Yet, as discussed above in the drunken apartment-dweller example, a
homicide may be legally justified under the statute, but morally unjustified because

146
When Self-Defense Violates Civil Rights, Editorial, THE NEW YORK TIMES, June 19, 2012, at
A28, available at http://nytimes.com/2012/06/20/opinion/when-self-defense-violates-civil-
rights.html.
147
Daniel Michael, supra note 2 at 210, n.92.
148
Mercado v. City of Orlando, 407 F.3d 1152, 1160 (11th Cir. 2005) (citing Tennessee v. Garner,
471 U.S. 1, 11-12 (1985)).
149
Ross, supra note 5, at 42.
150
See infra notes 450-51 and accompanying text.
151
FLA. STAT. ANN. 776.012-.013; 776.031-.032 ; see supra note 144 and accompanying text.
152
FLA. STAT. ANN. 776.012-.013; 776.031-.032.
153
See supra notes 72-73; Ross, supra note 5, at 42 n.245 (citing WAYNE LAFAVE, CRIMINAL LAW
547 (4th ed. 2003)) (There is a strong policy against the unnecessary taking of human life.).
154
Ross, supra note 5, at 42 (citing Grainger v. State, 13 Tenn. 459 (1830)).
155
FLA. STAT. ANN. 776.032; see supra Part III.C.
156
Paul H. Robinson & John M. Darley, Testing Competing Theories of Justification, 76 N.C.
L.REV. 1095, 1096 (1998)
[T]here is disagreement over the underlying theory of the justification
principle, and thus the proper legal formulation of such defenses. At the core
of the debate about the principle is the following question: Are justification
defenses given because the actors deeds avoid a greater harm, or because she
acted for the right reason? Id.
157
Elaine M. Chiu, Culture in our Midst, 17 U. FL. J. L. & PUB. POLY. 231, 238 (2005)
(discussing PAUL ROBINSON, 1 CRIMINAL LAW DEFENSES 21, at 70 (1984)) (Justification
defenses represent those instances in which defendants are not liable despite the fact their actions
caused legally recognized harms. These legally recognized harms are justified because, by the
same actions, defendants managed to avoid greater harms.).
158
See generally Robinson & Darley, supra note 156, at 1098.
159
Green, supra note 97, at 40.
160
Chiu, supra note 157, at 238.
161
FLA. STAT. ANN. 776.013, 776.032; see supra notes 126-30, 144 and accompanying text.
128

the killing did not truly avoid the greater harm.
162
If the killing falls within artificial
boundaries set by the statute, the killer has civil and prosecutorial immunity
regardless of the actual harms that result.
163
SYG fails to distinguish between a truly
honorable killing which was necessary to save an innocent life and a killing
motivated by racism or malice. The grant of immunity leaves victims with no
recourse and renders police and prosecutors powerless.
164
Together, the
combination of a presumption of reasonable fear and immunity converts the
presumption of reasonable fear from a rebuttable affirmative defense into an
irrebuttable conclusion and absolute bar to prosecution.
165
Removing discretion
from the legal system allows abuses to go unchecked.
166
Allowing one citizen to
kill another without at least the appearance of necessity, and without facing legal
consequences, shows a diminished estimation of the value of life.

5. The Application of Stand Your Grounds Presumptions and Immunity Clauses

Another consequence of SYG is that an actor may be legally justified in
killing over relatively trivial property offenses.
167
There is a deep history in English
and American common law that life is more highly valued than property.
168
SYG
rejects this longstanding principle.
169
Under Floridas old law, a person would have
to show that he feared for his life in order to be justified in using deadly force in
self-defense.
170
In contrast, SYG requires only that [t]he person who uses
defensive [deadly] force knew or had reason to believe that an unlawful and forcible

162
Killing a harmless drunk person is arguably more egregious than letting him sleep off his
intoxication on an innocent persons couch. See supra note 157 and accompanying text.
163
164
Megale, supra note 112, at 108; see supra note 144 and accompanying text.
165
Id. Steven Jansen & Elaine Nugent-Borakove, Expansions to the Castle Doctrine, NATIONAL
DISTRICT ATTORNEYS ASSOCIATION, American Prosecutors Research Institute 10, http://
www.ndaa.org/pdf/Castle% 20Doctrine.pdf (last visited Feb. 17, 2013) (the presumption of
reasonableness strips away prosecutors discretion in making charging decisions. The new laws
have created a situation in which prosecutors-and, ultimately, the triers of fact-are unable to pass
judgment on those individuals who negligently or recklessly choose to use deadly force.).
166
Id.
167
See generally Jansen & Nugent-Borakove, supra note 165, at 5, 7; Michael supra note 2, at 199;
see supra note 133.
168
25 A.L.R. 508 (Originally published in 1923)
One may prevent a trespasser from carrying away his property, using no more
force than necessary for that purpose, and then not to the extent of taking life,
or inflicting great bodily harm. The owner can, at most, only use sufficient
force to prevent the trespass or the carrying away of his property; and this
right does not go so far as to authorize the taking of life, or the infliction of
great bodily injury. He is not allowed to sacrifice human life in order to retain
the possession.
Id. (quoting Chapman v. Com. (1891)); 12 Ky. L. Rep. 704; Storey v. State, 71 Ala. 329,
341 (1882) (It would be shocking to the good order of government to have it
proclaimed, with the sanction of the courts, that one may, in broad daylight, commit a
willful homicide in order to prevent the larceny of an ear of corn.).
169
See generally Jansen & Nugent-Borakove, supra note 165, at 5, 7; Michael, supra note 2, at
199.
170
Anthony J. Sebok, Floridas New Stand Your Ground Law: Why Its More Extreme than
Other States Self-Defense Measures, and How it Got That Way, FINDLAW,
http://writ.news.findlaw.com/sebok/200520205.html (last visited Feb. 17, 2012).
129

entry or unlawful and forcible act was occurring or had occurred.
171
The National
District Attorneys Association reports that [t]his language can be interpreted to
allow for the use of deadly force even if the danger has ceased. The wording had
occurred appears to shield from prosecution an individual who fires at fleeing
suspects no longer posing a threat to the property owner.
172
Shooting a fleeing
thief is difficult to justify on self-defense grounds.
Professor Anthony Sebok poses several thought-provoking scenarios that
illustrate the morally questionable, but legally justified, application of deadly force
allowed by SYG. First, a teacher approaches his car only to discover a student who
was breaking into the car intending to vandalize it. Because of the statutory
presumptions, the teacher can shoot his student and be immune from prosecution.
173

Second, a doctor whose brother is a drug addict breaks into the doctors house to
steal pharmaceuticals. The doctor is free to shoot his brother, so he alone will
inherit his parents money.
174
Under traditional self-defense law, both of these
shootings would probably be investigated and prosecuted as murder.
175
Under
SYG, the shooter is legally justified because both victims were illegally entering or
trying to enter the shooters house or car.
176

SYGs presumptions and immunity create a surprising degree of freedom
for a person to kill another in or around ones home or car. An individual with
depraved motives could be able to kill with impunity under the statute, as described
in the example about the doctor killing his brother to gain an inheritance.
177
A killer
motivated by greed, jealousy or racism would face no penalty for killing if the
homicide fit the laws requirements.
178
The National District Attorneys
Association states that the requirement that an actor must merely have reason to
believe that a crime is occurring amplifies the probability that prejudice or racism
may be the underlying motivator in the justified use of force.
179
SYG opens the
door to legally justified moral wrongs.
180

IV. EXPRESSIVE LAW THEORY AND STAND YOUR GROUND LAWS

The theory of legal expressivism provides a means of exploring the wrongs
sanctioned by SYG because decoding SYGs deep subtext requires more than a

171
FLA. STAT. 776.013(1)(b).
172
Jansen & Nugent-Borakove, supra note 165, at 7.
173
Sebok, supra note 170; FLA. STAT. ANN. 776.013.
174
Sebok, supra note 170.
174
175
Cf. Sebok, supra note 170 (The old version of castle doctrine told homeowners that they could
kill when they reasonably believed their lives were in danger. Now the law tells average citizens
they can kill when they reasonably believe that their homes or vehicles have been illegally and
forcibly invaded.).
176
FLA. STAT. ANN. 776.013, 776.032.
177
See generally Jansen & Nugent-Borakove, supra note 165, at7 (the fact that one must now
only have reason to believe that an unlawful entry is occurring increases the possibility of
prejudice or simple mistake leading to tragic consequences).
178
The law requires that the victim have entered or attempted to enter the actors house or car.
FLA. STAT. ANN. 776.013. See Ross, supra note 5, at 36 (discussing the pretext used to justify
killings that are based on racial bias).
179
Jansen & Nugent-Borakove, supra note 165, at 7.
180
Id.; Sebok, supra note 170.
130

superficial reading of the statute.
181
Understanding the influence of SYG
necessitates analyzing its origin and meaning.
182
Expressive law theory explains the
importance of laws not simply for what they do, but for what they say.
183

Expression means that a deed or declaration gives life to a mental state.
184

[E]xpressive theories tell actors - whether individuals, associations, or the State - to
act in ways that express appropriate attitudes toward various substantive values.
185

This theory suggests that the morality of a law results from whether it assigns the
appropriate valuation to different social and cultural values, and that expressive law
theory is a useful tool for evaluating the ethics of a given law.
186
At the level of
state action . . . deliberative principles and policies can be appropriately interpreted
as expressing official state beliefs and attitudes, such as hostility toward certain
racial groups.
187
Laws are the expression of official (governmental and societal)
thought.
188
When a law fails to embody appropriate societal values, the law is
flawed. Equal protection cases provide an instructive example.
189

Fourteenth Amendment jurisprudence can be understood as embodying
expressive law ideas.
190
Further, Fourteenth Amendment cases provide a useful
illustration of implicit bias theory.
[T]he Court has consistently held that equal protection cannot be
applied by looking at the means or consequences of laws alone.
One must also examine the laws expressive purpose and the
justificatory connection between its means and ends.
Second, the Court recognizes the distinctive character of
expressive harms as harms inherent in the principle on which the
laws are enacted, rather than in the causal consequences of the
laws.
191

Expressive law theory explains the Courts rationale behind enforcing equal
protection claims: the message of equal protection is as valuable as the protection
itself.
192

181
Louis N. Schulze, Of Trayvon Martin, George Zimmerman and Legal Expressivism: Why
Massachusetts Should Stand its Ground on Stand Your Ground, 47 NEW ENG. L. REV. ON
REMAND 34, 38-39 (2012) (Understanding the mistaken assumption of the applicability of
Floridas SYG law in the Zimmerman prosecution entails deconstructing the messages those laws
convey to citizens.).
182
See generally Alex Geisinger, A Belief Change Theory of Expressive Law, 88 IOWA L. REV. 35
(2002), for a discussion of the theory of expressive law.
183
See generally Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A
General Restatement, 148 U. PENN. L. REV. 1503 (2000). Expressive theories, therefore, do not
deny that consequences matter. Rather, they tell us why the consequences matter, and which
consequences matter. Id. at 1514. Richard H. McAdams, An Attitudinal Theory of Expressive
Law: A General Statement, 79 OR. L. REV. 339, 339 (2000) (Legal theorists sometimes posit that
law affects behavior expressively by what it says rather than what it does.)
184
Anderson & Pildes, supra note 183, at 1506.
185
Id. at 1504.
186
Id. (much of our existing practices of moral and legal evaluation are best understood through
expressivist perspectives").
187
Id. at 1506.
188
Cf. Id. at 1520.
189
Id. at 1542.
190
Id.
191
Id.
192
Cf. Id. (Policies adopted out of contempt or hostility toward a racial group. Or with the
purpose of branding a racial group as inferior, are expressively harmful and therefore
131

In his seminal work on stigmatic harm and equal protection, discussed in
the expressive law literature,
193
Paul Brest explains the result in Brown v. Board of
Education
194
and other civil rights cases under the antidiscrimination principle.
195

The antidiscrimination principle asserts that racial classifications and
discrimination are wrong, not just because they deny equal access to opportunity,
but because of the stigma that results from differential treatment.
196
Decisions
based on assumptions of intrinsic worth and selective indifference inflict
psychological injury by stigmatizing their victims as inferior.
197
The stigmatic
effect of a discriminatory law results from the statement the law makes about the
value of groups of people as much as the function of the law that deprives them of a
particular right.
198

Similar to the way the Court rejected racial classifications because of their
expressive value
199
(codifying racial inferiority), people routinely analyze and either
accept or reject laws based on the messages they convey. For instance, many
Americans support capital punishment, not for its deterrent value, but for its
meaning.
200
Bicycle helmet laws, as a practical example, set a standard for safety
that becomes internalized. American parents often require their children to wear
helmets when riding bicycles in Mexico on vacation, though Mexican laws do not
require helmets. Laws make a powerful statement about what behavior is socially
accepted. The importance of the expression/statement made by these laws lies in
the way the expression influences social norms.
201

Expressive law theorist, Richard McAdams, explores how the statements
made by laws influence and change social norms.
202
McAdams argues that law
changes behavior by signaling the underlying attitudes of a community or society.
Because people are motivated to gain approval and avoid disapproval, the
information signaled by legislation and other law affects their behavior.
203

Individuals seek approval, and if they receive signals via legislation that society
approves certain behavior, they will adapt their behavior and beliefs to conform to
perceived norms.
204
Studies show that individuals beliefs are strongly influenced
by legislation.
205
The effect of a change in the law can be substantial because a
law may . . . create a feedback effect, thereby producing a discontinuously large

unconstitutional regardless of their direct material, social, and psychological consequences. . . .
[T]he harm from racial segregation does not lie simply in its material consequences.).
193
Matthew Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. Pa. L. Rev. 1363,
1428-29 (2000).
194
Brown v. Board of Ed. of Topeka, 347 U.S. 483 (1954).
195
Paul Brest, The Supreme Court 1975 Term-Forward: In Defense of the Antidiscrimination
Principle, 90 HARV. L. REV. 1, 2, 8 (1976); Brown v. Board of Educ., 347 U.S. 483 (1954); Plessy
v. Ferguson, 163 U.S. 537 (1896) (Harlan, J., dissenting); Strauder v. West Virginia, 100 U.S. 303
(1880).
196
Brest, supra note 195, at 8.
197
Id.
198
Id.
199
Brown, 347 U.S. 483.
200
Cass R. Sunstein, On the Function of Expressive Law, 144 U. PA. L. REV. 2021, 2023 (1996)
(citing Tom R. Tyler & Renee Weber, Support for the Death Penalty: Instrumental Response to
Crime, or Symbolic Attitude, 17 L. & SOCY REV. 21, 40 (1982)).
201
Cf. Sunstein, supra note 200, at 2026
202
See generally McAdams, supra note 183.
203
Id. at 340.
204
Id. at 367 (citing Bayes Theorum),
205
Id. at 368 (2000) (citing PAUL M. SNIDERMAN & THOMAS PIAZZA, THE SCAR OF RACE (1993)).
132

change in behavior.
206
Interest groups may exploit these effects by seeking
passage of laws furthering their interests, thus causing people to assume that the
groups position has widespread acceptance.
207
The NRA perhaps tacitly
acknowledged this in its strategy of starting SYG in Florida and spreading it across
the nation.
208
People frequently assume that legislators have superior knowledge
about the benefits of a law.
209
Thus, expressive effects of SYG become more
pronounced each time a state adopts SYG legislation because it arguably influences
public opinion about what the law should be and what behavior is acceptable.
210

Expressive law theory is useful in evaluating SYG because it explains the
social harm threatened by SYG resulting from the value assumptions underlying the
law.
211
What SYG says about people and the value of their lives is just as significant
as the fact that some killers will not face prosecution under SYG.
212
The message
SYG conveys will likely influence the beliefs and behaviors of citizens who assume
that the message expresses valid social norms.
213
Further, the implicit biases held
by Americans put racial minorities at risk of being on the receiving end of defensive

206
Id. at 372 .
207
Cf. id. at 341.
208
NRA-ILA, This Train Keeps a Rollin: Castle Doctrine Sweeps America, NRA-ILA (June 28,
2006) http://www.nraila.org/news-issues/articles/2006/this-train-keeps-a-rollin%60.aspx
[hereinafter Train].
Although anti-gun groups, politicians and newspaper editors in 2005
screamed of blood on the tracks in Florida after passage of that states Castle
Doctrine law, the legislation has proven beneficial to not only Floridas law-
abiding citizens, but also to citizens in other states who have seen the light at
the end of the tunnel.
Castle Doctrine, in essence, simply places into law what is a fundamental
right: self-defense. If a person is in a place he or she has a right to bein the
front yard, on the road, working in their office, strolling in the parkand is
confronted by an armed predator, he or she can respond in force in defense of
their lives. . . .
Castle Doctrine also protects the law-abiding from criminal and civil charges
for defending themselves against an attacker whereby, after enduring the
trauma of a violent attack, they arent again tied to the tracks of a drawn-out,
nightmarish legal battle that could derail their financial future.
Today, the NRA is feeding the firebox of Castle Doctrine legislation in states
throughout the country, conducting a self-defense whistle stop campaign that
is turning focus from criminals rights to those of the law-abiding who are
forced to protect themselves.
After the NRA helped gain passage of Floridas Castle Doctrine law in April
2005, the Association promised to push for similar laws throughout the
nation.
A year later, the National Rifle Association is continuing to fulfill that
promise. (emphasis added).
209
McAdams, supra note 183, at 358 (Law signals the existence of information held by the law-
maker.).
210
Cf. id. at 361-63 (discussing the correlation between legislation and popular opinion).
211
Cf. Schulze, supra note 181, at 39 (SYG laws subordinate human life to values like honor,
manliness, and machismo; if one has the option to retreat, one need not spare the life of the
attacker if one instead chooses to act in accordance with ones honor or natural tendency of a true
man to use violence.).
212
Cf. id.; see supra notes 144, 145 and accompanying text.
213
See id. 37-38 (citing McAdams, supra note 183, at 358-59) (discussing expressive law theory).
133

force.
214
This development in the law devalues human life because there is greater
freedom to kill,
215
and it sends the message the lives of people of color are less
valuable.
216

V. SOUTHERN CULTURE & STAND YOUR GROUND:
HOW SOUTHERN CULTURE ALIGNS WITH STAND YOUR GROUND

The message of SYG is closely related to the laws birthplace because the
cultural values that enabled passage of the law
217
may become embedded in the
law.
218
Plants take on properties of the soil in which they grow. Likewise, laws take
on the properties of the metaphorical soil in which they are planted. Understanding
the culture that produced SYG is crucial to understanding the message of the law.
219

The NRA arguably used Florida to launch SYG because it is a gun-friendly
southern state receptive to liberal self-defense laws.
220
Understanding Floridas

214
Adam Benforado, Quick on the Draw: Implicit Bias and the Second Amendment, 89 OR. L.
REV. 1, 3 (2010) (In simulations, Americans are faster and more accurate when firing on armed
blacks than when firing on armed whites); see infra Part VII.
215
See supra Part III.C.; Schulze, supra note 181, at 39.
216
Cf. Schulze, supra note 181, at 41 (Given the historical antecedents of these laws - specifically
the slavery and Wild West cultures-legislatures should understand the values they are tacitly
embracing.). See supra note 214; see infra Part VII; see Lawson, supra note 34, at 306 (The
Stand Your Ground law may in fact communicate to Floridians it is more acceptable to kill
minorities, Black-as-criminal-types, because such actions will ultimately be viewed as reasonable,
justified, and therefore immune from criminal and civil liability.) (citing the preamble to Fla.
Stat. 776.036).
217
Shoot-First, supra note 1; see supra notes 1, 2.
218
See generally Chiu, supra note 157 (discussing how culture and law influence each other);
Schulze, supra note 181 at 41 ([G]iven SYG laws shared moral lineage with lynching,
patriarchal views of justified homicide, and dueling, legislators ought to give serious pause before
adopting values of this ilk.).
219
Cf. Chiu, supra note 157, at 232 (citing Robert Post, Law and Cultural Conflict, 78 CHI-KENT
L. REV. 485, 487 (2003)) (First, the law does not merely enforce cultural norms; indeed, the law
frequently creates new norms which may be contrary to cultural tendencies. Second, culture itself
is not stable, coherent, or singular, and thus its malleability challenges the law.).
220
FLORIDA HAS BEEN CALLED THE GUNSHINE STATE. ADAM WEINSTEIN, HOW THE NRA AND
ITS ALLIES HELPED SPREAD A RADICAL GUN LAW NATIONWIDE, MOTHER JONES, (JUNE 7, 2012,
2:10 AM), HTTP://WWW.MOTHERJONES.COM/POLITICS/2012/06/NRA-ALEC-STAND-YOUR-GROUND.
Since 2005, Florida lawmakers have taken aim at gun control with a barrage
of deregulation measures:
Requiring employers to let employees keep guns in their cars while at work
Requiring city and county governments to allow guns in public buildings and
parks
Lifting a long-standing ban on guns in national forests and state parks
Allowing military personnel as young as 17 to get concealed-weapons
licenses. (Age limit remains 21 for everyone else.)
Withholding the names of concealed-carry licensees in public records
Permitting concealed-carry licensees "to briefly and openly display the
firearm to the ordinary sight of another person." (The original bill would have
allowed guns on college campuses, but it was amended after a GOP
lawmaker's friend's daughter was accidentally killed with an AK-47 at a frat
party.)
Prohibiting doctors from asking patients if they keep guns or ammo in the
house unless it's "relevant" to their care or safety. (Overturned by a federal
judge.)
134

southernness

is crucial to understanding the values that SYG expresses and
incorporates.
221

Southern attitudes toward equality and justice are shaped in part by
history.
222
Traditionally, the South has been more conservative than other regions.
223

Elitism, landownership, and feudalism were imported by early settlers to the region,
creating a stratified society hostile to change.
224
Because status was derived from
ownership and wealth, rather than from freedom and equality, inequality became
socially entrenched.
225
Institutionalized racism and slavery offer compelling
evidence of the inequality that plagued the South.
226
Some scholars posit that
underfunded educational institutions created a less educated population more
accepting of a system of injustice and inequality in place of the rule of judicial
law.
227

A. Southern Honor Culture

Forces of southern history combined justice and violence to replace formal
legal authority.
228
In large part due to its rural and agricultural frontier, its

Allowing legislators, school board members, and county commissioners to
carry concealed weapons at official meetings. (Didn't pass; another bill to let
judges pack heat "at any time and in any place" died in 2009.)
Designating a day for tax-free gun purchases. (Didn't pass.)
Exempting guns manufactured in Florida from any federal regulations. (Didn't
pass.)
Id. See Shoot-First, supra note 1 (The NRA believes it has a favorable climate, especially in the
Southin which to market its macho bill). For the purposes of this paper Florida is considered a
southern state. While there is some debate surrounding the issue of whether Florida is genuinely
southern, this author subscribes to the theory propounded in Southern Violence, supra note 2.
This theory holds that, rather than southern culture being diluted by northerners moving south, the
influence of southerners in the rest of the nation has caused a southernization of America. Id. at
226 (discussing RAYMOND GASTIL, CULTURAL REGIONS OF THE UNITED STATES, 116, 109 (1975)
and John Reed, Below the Smith and Wesson Line: Reflections on Southern Violence (Apr. 21,
1977)). By some objective measures, Florida is southern. See LEAGUE OF THE SOUTH,
http://dixienet.org/rights/thesouthasitsownnation.shtml (last visited Apr. 29, 2013) (measured by
congressional votes, [Florida] . . . remains politically a Southern State). Anecdotal evidence also
suggests that Florida is culturally southern. It is easy to forget that Florida is, indeed, a Southern
state since one is often surrounded by folks who speak just as they do. But if you go to nearly any
smaller town in Florida, you immediately hear the lilt of Southern accents and are jolted back to
the reality that we are farther South than Georgia, Alabama or Mississippi. Douglas Spangler,
Heres a Guide to Getting Along with this States Southernness, ST. PETERSBURG TIMES ONLINE,
(Aug. 4, 2000), http://www.sptimes.com/News/080400/Pasco/Here_s_a_guide_to_get.shtml.
221
See generally Southern Violence, supra note 2, at 226 (discussing southernness).
222
Cf. Warf, supra note 2, at 92.
223
Id.
224
Id. at 93 (discussing K. RAITZ, APPALACHIA: A REGIONAL GEOGRAPHY (1984)).
225
Cf. Id. at 93.
226
Cf. Id. at 94.
227
Id. at 93.
228
Southern Violence, supra note 2, at 230 (discussing H. REDFIELD, HOMICIDE, NORTH AND
SOUTH: BEING A COMPARATIVE VIEW OF CRIME AGAINST THE PERON IN SEVERAL PARTS OF THE
UNITED STATES 4-14 (1880)) (The problem of the ubiquitous killing encounters was compounded
and exacerbated by the equally widespread phenomenon of unpunished murder, a feature that was
so deeply embedded in southern society as to be in reality a system supported by all classes, men
of family, position, and standing, and even the church.).
135

slaveholding past, and its lack of strong governmental authority, the South
developed a unique brand justice that was more accepting of violence and inequality
than other regions.
229
Violence was inextricably woven into the most fundamental
aspects of life in the South and constituted an important phase of the total
experience of its people,
230
and it served as an enforcement mechanism for the
unwritten honor code in the absence of a strong legal system.
231
Without effective
law enforcement, it is common for a culture of honor to develop.
232
The honor
culture that developed in the South created an entrenched system of extrajudicial
justice.
233
In place of a strictly legal code, the southern code included the
Constitution, the Bible, honor, family, and slavery.
234
Disputes were settled through
fighting, rather than courts, resulting in a substantial number of unprosecuted
homicides.
235
In honor cultures, self-defense becomes broadly construed because
individuals must take swift and definitive action in the face of an affront or threat to
avoid becoming a target for exploitation.
236

This honor culture persists into the modern era.
237
A study of the attitudes
of northern and southern college students bears out the contention that an honor
culture exists among present-day southerners, rather than being merely a relic of the
past.
238
Researches performed a series of experiments: white male participants were
grouped into northern and southern categories and rated in terms of their levels of

229
Southern Violence, supra note 2, at 227-28 (quoting J. FRANKLIN, THE MILITANT SOUTH: 1800-
1861, at 12-13 (1964)) ([v]iolence was inextricably woven into the most fundamental aspects of
life in the South and constituted an important phase of the total experience of its people); Id. at 28
(citing J. REED, THE ENDURING SOUTH 45-56 (1972) (southerners retain a value system and
behavior patterns that make them more tolerant of violence and the use of force than other
Americans); id. at 27-28 (discussing Sydnor, The Southerner and the laws in THE PURSUIT OF
SOUTHERN HISTORY 62 (G. Tindal led. 1964)); Warf, supra note 2, at 94 (discussing D. FISHER,
ALBIONS SEED: FOUR BRITISH FOLKWAYS IN AMERICA (1989)) (Fisher argues that Southern
tolerance of violence reflected the long history of the British border regions.).
230
Southern Violence, supra note 2, at 227 (quoting J. FRANKLIN, THE MILITANT SOUTH: 1800-
1861, at 12-13 (1964)) (Warf, supra note 2, at 94 (citing MONTELL, KILLINGS: FOLK JUSTICE IN
THE UPPER SOUTH (1986) (Punishment without due process was relatively common in many
southern communities until the twentieth century.)
231
Id. Southern Violence, supra note 2, at 228 (citing Sydnor, The Southerner and the Laws, in
THE PURSUIT OF SOUTHERN HISTORY 62 (G. Tindall ed. 1964)).
232
Dov Cohen & Richard E. Nisbettt, Self-Protection and the Culture of Honor: Explaining
Southern Violence, 20 (5) PERSONALITY AND SOC. PSYCHOL. BULL. 551, 552 (1994) (hereinafter
Self-Protection) (In systems . . . where self-protection is essential, a culture of honor will
develop.); Schulze, supra note 181, at 39 (quoting Dan Kahan, The Secret Ambition of
Deterrence, 113 HARV. L. REV. 413, 432-33 (1999)) (By virtue of the slave culture in the [South]
. . . [it] had inherited rich systems of honor that put a premium on physical displays of courage and
on violent reactions to slights.)
233
Southern Violence, supra note 2, at 230 (discussing REDFIELD, supra note 228 at 4-17).
234
Id. at 227-28 (citing Sydnor, supra note 229, at 62).
235
Id.
236
Self-Protection, supra note 232, at 552 (discussing J.K. Campbell, Honour and the Devil in
HONOUR AND SHAME: THE VALUES OF MEDITERRANEAN SOCIETY, 112-175 (1965) and J. Pitt-
Rivers, Honor and Social Status in HONOR AND SHAME: THE VALUES OF MEDITERRANEAN
SOCIETY 21-77 (1965) (Therefore, if one has been crossed or trifled with, retribution must follow
as a preemptive strike and warning to the community. Self-defense becomes very broadly defined
as preservation of ones person, ones family, ones home, or ones honor.).
237
Cohen et al., Insult, Aggression, and the Southern Culture of Honor: An Experimental
Ethnography, 70(5) JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY 945, 496-97 (1996)
(discussing the presence of honor culture in the modern South).
238
Id.
136

aggression when confronted or provoked.
239
In the first experiment, volunteers
were unexpectedly bumped in a hallway and each called an a**hole.
240
In the
second experiment, saliva samples were analyzed to determine changes in cortisol
(stress hormone) and testosterone levels before and after study participants were
bumped.
241
The third experiment was designed to test whether enduring an insult
would cause southern participants to act more aggressively in a subsequent
encounter.
242
The study found that after an insult or unwanted physical contact,
southerners and northerners displayed substantially different attitudes.
243

[S]outhern participants differed from northern participant in
several important cognitive, emotional, physiological, and
behavioral respects. . . . (a) Southerners were made more upset by
the insult . . . (b) Southerners were more likely to believe the
insult damaged their masculine reputation or status in front of
others . . . (c) Southerners were more likely to be cognitively
primed for future aggression in insult situations . . . (d)
Southerners were more likely to show physiological preparedness
for dominance or aggressive behaviors . . . (e) Southerners were
more likely to actually behave in aggressive ways in subsequent
challenge situations . . . and (f) Southerners were more likely to
actually behave in domineering ways during interpersonal
encounters.
244

The significance of this study in understanding SYG is two-fold. First,
honor culture is still a force that shapes attitudes in the South.
245
Second,
researchers found that culture-of-honor norms are embodied in the laws and social
policies of southern states as reflected in looser gun control laws [and] less
restrictive self-defense statutes. . . .
246
Hence, SYG can be understood as an
outgrowth of southern honor culture, and this honor culture is being spread, via
SYG laws, to other regions where it was not previously as prominently established.

B. Violence and Southernness

Honor culture and violence are mutually reinforcing.
247
In the words of
sociologists, [i]t is not hard to see how insult-aggressions cycle lead to violence
and death in real-life situations. Arguments that start over petty matters can quickly
escalate into deadly conflicts once a challenge or insult has been issued.
248
While
embracing honor culture,
249
Southerners disproportionately approve the use of
violence for defensive purposes.
250
When queried about acceptable uses of violence,

239
See generally id.
240
Id.
241
Id.
242
Id.
243
Id.
244
Id. at 957.
245
See generally id.
246
Id. at 946 (citing Dov Cohen, Law, Social Policy, and Violence, 70 J. PERSONALITY & SOC.
PSYCHOL. 961-978 (1996)).
247
Id. at 957.
248
Id.
249
See generally id.
250
Self-Protection, supra note 232, at 554.
137

southerners were far more likely than other Americans to believe that a man has
the right to kill another man in a case of self-defense or in defense of his house.
251

These attitudes are compatible with SYG values and norms because SYG has
broader categories of justified homicides.
252
Attitudes tend to influence behavior,
253

so it is not surprising that southern attitudes toward violence result in grim statistics
in poverty, homicide rates, racial violence, gun ownership, illiteracy, [and] poor
schools.
254

The South has higher rates of violent crime, particularly homicide,
compared with other regions of the United States.
255
From the 1870s on, the South
has been the national leader in homicide.
256
According to FBI reports, in 2007
murder rates decreased in every region in the United States except the South.
257
In
2007 when the murder rate in other regions dropped, murder rates in the South
increased.
258
In 2009 the South had the highest murder rate in the nation.
259

Looking beyond just murder rates, the Institute for Economics and Peace compiled
data that revealed that the South was the most violent region in the country.
260
And
reflecting the conservatism prevalent in the South, southerners were more likely to
support the use of violence to secure social order but not to effectuate change.
261

251
Self-Protection, supra note 232, at 554 (citing M.D. Blumenthal, et al., More About Justifying
Violence: Methodological Studies of Attitudes and Behavior, Ann Arbor, MI: INSTITUTE FOR
SOCIAL RESEARCH (1975)).
252
FLA. STAT. ANN. 776.012-.013; 776.031-.032; see supra Part III.
253
THE HANDBOOK OF MOTIVATION AND COGNITION: FOUNDATIONS OF SOCIAL BEHAVIOR 206
(Richard M. Sorrentino & Edward Tory Huggins, eds. 1986) (There can be no doubt that
attitudes do sometimes relate to subsequent behavior and that the field has achieved some
understanding of just when the sometimes is.).
254
Warf, supra note 2, at 95; see State RankingsStatistical Abstract of the United States: Violent
Crimes per 10,000 Population2006, US CENSUS BUREAU,
http://www.census.gov/statab/ranks/rank21.html (last visited Mar. 3, 2013) (showing Florida had a
higher rate of violent crime in 2006 than any state except Washington, D.C., South Carolina and
Tennessee).
255
Southern Violence, supra note 2, at 226 (citing REDFIELD, supra note 228, at 9-14).
256
Id.; Murder Rate Declines in Every Region Except the South, Where Executions are Most
Prevalent, DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/murder-
rate-declines-every-region-except-south-where-executions-are-most-prevalent (last visited Apr. 24,
2012). The regions of the United States are defined as the South, West, Midwest and Northeast.
257
Id.
258
Id.
259
Studies 2009 FBI Crime ReportMurder Rate Highest in the South, Lowest in the Northeast,
DEATH PENALTY INFORMATION CENTER, http://www.deathpenaltyinfo.org/studies-2009-fbi-
crime-report-murder-rate-highest-south-lowest-northeast (last visited Apr. 24, 2012).
260
David Edwards, U.S. Peace Index Finds Most Violence in Conservative Southern State, THE
RAW STORY (April 8, 2011, 11:17 EST), http://www.rawstory.com/rs/2011/04/08/u-s-peace-index-
finds-most-violence-in-conservative-southern-states. The most violent states, in order, were
Louisiana, Tennessee, Nevada, Florida, Alabama, Texas, Arkansas, Oklahoma, South Carolina,
Maryland. The most peaceful states were Maine, New Hampshire, Vermont, Minnesota, North
Dakota, Utah, Massachusetts, Rhode Island, Iowa, and Washington. Id.
261
Self-Protection, supra note 232, at 554.
138

C. Violence and Racism

Over time, southern honor culture and violence powerfully intersected with
racism.
262
Slavery and race played an important role in southern culture, and
extrajudicial justice became deeply racialized, as evidence in the lynchings of
blacks well into the twentieth century.
263
In addition to social control,
264
violence
was used as a tool of racial oppression in the South, intended to control blacks after
the Civil War and at least through the 1950s.
265
While southern violence was not
reserved exclusively for blacks, the injustice of racial violence directed at blacks is
unparalleled in America.
266
Black men were killed for offenses as trivial as
whistling at a white woman,
267
seeking higher pay,
268
or attempting to vote.
269

Deaths of black men at the hands of white men were typically whitewashed by the
legal system, often with the help of local law enforcement.
270
These racially
motivated killings still affect the black community.
271

Some commentators have connected past racial violence with the killing of
Trayvon Martin.
272
The long tradition of impunity that historically followed the
unprovoked killing of Black men in America is an old, and deep, wound that many
people in the African American community still grieve.
273
The hypothesis is that
SYG set the stage for Martins killing because it demonstrated renewed acceptance
of the use of violence as a means of problem solving. While difficult to quantify,
some scholars maintain that racism remains a force in the South.
274

In spite of the progress of the Civil Rights Movement
275
and the election
of Americas first black president, racial prejudice persists.
276
Indeed, prejudice

262
Cf. Warf, supra note 2 at 95 (punishment was generally meted out unevenly by class, and it
was typically, the poor, minorities, and the illiterate who most commonly went to the gallows).
263
Id.
264
Southern Violence, supra note 2, at 230 (discussing REDFIELD, supra note 228, at 4-14).
265
Suzanne Hall, Racial Violence, 13-2 SOUTHERN CHANGES 23, 24 (1991) (discussing George
Wright) available at http://beck.library.emory.edu/southernchanges/article.php?id=sc13-2_010.
Whites used violence to keep blacks in their place after the disruption of
society and culture following the civil war. . . . After the turn of the century,
mob lynchings became less respectable . . . But with the decline in illegal
killings came a rise in what Wright aptly terms legal lynchings, executions
following hasty, procedurally inadequate trials.
266
Cf. id; see Brown v. Mississippi, 297 U.S. 298 (1936) (describing black defendants tortured
confessions).
267
Lawson, supra note 34, at 275 (quoting STEPHEN J. WHITEFIELD, A DEATH IN THE DELTA:
THE STORY OF EMMETT TILL vii (1998)).
268
Id. (citing James C. Clark, Civil Rights Leader Harry T. Moore and the Ku Klux Klan in
Florida, 73 FLA. HIST. Q. 166, 166 (1994)).
269
Id. (citing David R. Colburn, Rosewood and American in the Early Twentieth Century, 76 FLA.
HIST. Q. 175, 190-91 (1997)).
270
Id. (citing WHITEFIELD, supra note 267, at vii).
271
Id. at 274 (The long tradition of impunity that historically followed the unprovoked killing of
Black men in America is an old, and deep, wound that many people in the African American
community still grieve.).
272
See generally Schulze, supra note 181, at 39; see generally Lawson, supra note 34.
273
See Lawson, supra note 34. at 274.
274
Cf. Warf, supra note 2, at 95 (Indeed, to this day, white southern culture frames the degree to
which a substantial share of the regions white population accepts racism or inequality as natural).
275
See U.S. Const. amend. XIII; U.S. Const. amend. XIV; U.S. Const. amend. XV; Civil Rights
Act of 1964, Pub. L. No. 88-352, 78 stat. 241 (codified as amended at 42 U.S.C. 2000(a)-(h)
(2000)).
139

against minorities has reportedly increased in recent years.
277
Between 2008 and
2012, the percentage of Americans expressing explicit bias against blacks has
increased from 48 to 51 percent.
278
When measured by an implicit racial attitudes
test, the number of Americans with anti-black sentiments jumped to 56 percent, up
from 49 percent during the last presidential election. In both tests, the share of
Americans expressing pro-black attitudes fell.
279
While many Americans have
embraced the notion of colorblindness . . . asserting that race does not matter,
280

the foregoing statistics do not support the notion that ignoring race solves the racism
problem.
281
While racial prejudice plagues the United States as a whole, it is
exceptionally pronounced in the South.
282

D. Stand Your Ground and Southern Culture

Southern attitudes, while originating in the South, are not restricted to the
South.
283
Scholars have argued that the values and experiences of southernness
strongly influence other Americans attitudes.
284
Modern homicide rates, both inside
and outside of the South, have been linked to southern culture.
285
As southerners
leave the South and migrate to other regions, they bring their attitudes toward
violence with them.
286
As such, the U.S. has become increasingly southern in its
values as southern culture spreads.
287
Renowned historian Richard Maxwell Brown
argues that there has been a southernization of America and that this trend has been
basic to Americas traditionally high homicide rate.
288
The spread of southern
values seems to be a precursor to the spread of SYG and its values.

276
Cf. Michael Ewens, Bryan Tomlin & Liang Choon Wang, Statistical Discrimination or
Prejudice? A Large Sample Field Experiment, http://ewens.tepper.cmu.edu/papers/stat-disc.pdf
(last visited Jan. 22, 2013) (explaining that discrimination in the [rental] screening process can
predict lower marginal returnfor the discriminated-against group.)
277
AP Poll: Majority Harbor Prejudice Against Blacks, ASSOCIATED PRESS (Oct. 27, 2012, 6:57
AM) http://usnews.nbcnews.com/_news/2012/10/27/14740413-ap-poll-majority-harbor-prejudice-
against-blacks?lite.
278
Id.
279
Id.
280
MONICA Williams, Colorblind Ideology is a Form of Racism, PSYCHOLOGY TODAY (Dec. 27,
2011) http://www.psychologytoday.com/blog/colorblind/201112/colorblind-ideology-is-form-
racism (discussing the inadequacy of colorblindness as a remedy to racism).
281
Id. ([C]olorblindness helped make race into a taboo topic that polite people cannot openly
discuss. And if you cant talk about it, you cant understand it, much less fix the problems that
plague our society.
282
Warf, supra note 2, at 95.
283
Cf. Southern Violence, supra note 2, at 226 (discussing RAYMOND GASTIL, CULTURAL
REGIONS OF THE UNITED STATES, 116, 109 (1975) and John Reed, Below the Smith and Wesson
Line: Reflections on Southern Violence (Apr. 21, 1977)).
284
Id.
285
Id. (there has been a southernization of American and that this trend has been basic to
Americas traditionally high homicide rate).
286
Id. (discussing the Gastil-Reed hypothesis) (the homicide rate, state-by-state, tends to reflect
the index of southernness).
287
Id. (discussing the theory that southernness accounts for murder rates); Warf, supra note 2 at
95 (describing mob justice).
288
Southern Violence, supra note 2, at 226 (discussing RAYMOND GASTIL, CULTURAL REGIONS OF
THE UNITED STATES, 116, 109 (1975) and John Reed, Below the Smith and Wesson Line:
Reflections on Southern Violence (Apr. 21, 1977)).
140

By choosing Florida as the birthplace of SYG, the NRA has exploited the
southern pattern of using extrajudicial violence for problem solving.
289
SYG
essentially codified the practice of violence-as-justice
290
because of the lack of
justice system oversight resulting from the presumptions and immunity provisions
of SYG.
291
This reality sends a message about the depreciated value of human life
and societys tolerance of violence as a problem-solving technique. The racism
underlying this pattern is barely below the surface.
292
The NRA is tapping into a
racially troubled southern milieu
293
to spread problematic and deeply criticized gun
laws across the country
294
while the values that underlie the law find expression in
SYG.
The influence of SYG is far-reaching and not limited to individuals with
conscious racial prejudices and stereotypes. Advances in implicit social cognition
reveal that most people carry biases against racial minorities beyond their conscious
awareness. These biases affect critical behavior, including the actions of
individuals performing shooting tasks.
295
Because SYG may affirm biases which
are often unrecognized by those affected by them,
296
the reach of SYG could be
enormous.
297
As the NRA brings SYG to the rest of the country, it brings all of its
baggage along with it.
A recent case provides an apt and tragic illustration of what can be
exported via SYG. In an episode eerily similar to the Martin killing, white gun
enthusiast, Michael Dunn, shot and killed 17-year-old black male Jordan Davis.
298

Dunn pulled into a gas station and parked next to the SUV in which Davis and his

289
Id. at 230 (discussing H. REDFIELD, HOMICIDE, NORTH AND SOUTH: BEING A COMPARATIVE
VIEW OF CRIME AGAINST THE PERON IN SEVERAL PARTS OF THE UNITED STATES 4-14 (1880))
(The problem of the ubiquitous killing encounters was compounded and exacerbated by the
equally widespread phenomenon of unpunished murder, a feature that was so deeply embedded in
southern society as to be in reality a system supported by all classes, men of family, position, and
standing, and even the church.); see supra notes 1- 3; see supra Parts V.A-C.
290
Id.; Cf. Lawson, supra note 34, at 282 (Impunity was often the preferred prosecutorial
response to the suspicious killing of black men.); see supra notes 1- 3; see supra Parts V.A-C.
291
Id.; FLA. STAT. ANN. 776.012-.013; 776.031-.032. Lawson, supra note 34, at 287 (If the
defendant is successful in proving his self-defense claim at the pre-trial hearing, the criminal case
is dismissed, and the defendant is deemed immune from criminal prosecution for the killing. The
immunity is granted on the judges order alone, with the case never being heard by a jury.); see
supra Part III.C.
292
See Schulze, supra note 181 at 39 (citing Kahan, supra note 232) (discussing how the southern
history of slavery relates to SYG); see generally Lawson, supra note 34, for a discussion
comparing Trayvon Martins killing to historic patterns of violence against blacks in the South; see
supra notes 1- 3; see supra Parts V.A-C.
293
See generally Lawson, supra note 34 for a discussion of Floridas SYG law and racism, see
supra notes 1-3; see supra Parts V.A-C.
294
See supra note 1 and accompanying text. Cf. Shoot-First, supra note 1 (The NRA believes it
has a favorable climate, especially in the Southin which to market its macho bill); see supra
note 208.
295
Benforado, supra note 214, at 3.
296
See infra Parts VI-VIII; see infra notes 417-421, see generally Lawson, supra note 34 for a
discussion about SYG and race.
297
Implicit bias is explored in greater depth in Part VII.
298
New Evidence Introduced in Jordan Davis Murder Case Including Pictures, 911 Calls,
ATLANTA DAILY WORLD (Mar. 13, 2013);
http://atlantadailyworld.com/201303134549/Featured/new-evidence-introduced-in-jordan-davis-
murder-case-including-pictures-911-calls [hereinafter Jordan Davis]; Solotaroff, supra note 2 at
60.
141

friends listened to loud music.
299
Dunn asked the boys to turn down their radio.
300

They refused and exchanged heated words with Dunn.
301
Dunn retrieved his gun
from the glove box, opened fire on the vehicle, killed Davis, and continued shooting
as Davis and his friends fled in the SUV.
302

When police came to Dunns home to arrest him, he seemed unconcerned
about the legality of his actions, telling police, [t]hey defied my orders. What was
I supposed to do if they wouldnt listen?
303
Only after consulting with a lawyer a
few days after the shooting did Dunn justify his actions, saying he fired 10 shots in
a crowded shopping plaza because he felt threatened by the boys.
304
Dunns story
also evolved to include the claim that Jordan and his companions had a shotgun
pointed at him,
305
but in his early version of events, Dunn omitted the shotgun
allegedly held by the boys.
306
No shotgun has been found.
307
Unlike the Martin
case, Dunn was immediately arrested and charged with murder.
308
Like George
Zimmerman, however, Dunn is expected to invoke a SYG defense.
309

The killing of Jordan Davis provides an instructive example of SYG at
work. From one point of view, Dunn simply acted out of anger and exercised
fatally poor judgment, and the justice system is holding him accountable. Viewed
through the expressive law lens,
310
Dunn was practicing traditional southern
extrajudicial justice,
311
codified by SYG.
312
He may have acted as he did because he
believed SYG sanctioned his use of force. One commentator wrote,
[u]nderstanding the mistaken assumption of the applicability of Floridas SYG law
in the Zimmerman prosecution entails deconstructing the messages those laws
convey to citizens.
313
Dunn seemed to share the same mistaken assumption of
applicability of SYG.
314
The assumption that SYG sanctions almost all
extrajudicial self-help demonstrates the danger inherent in the law. And another
(seemingly innocent and unarmed) black teenager is dead.

VI. THE NATIONAL RIFLE ASSOCIATION AND STAND YOUR GROUND LAW

A. The National Rifle Associations Strategy

In view of the problems with SYG, outlined above, evaluating its genesis
and trajectory is critical. Rather than a populist movement, Floridas SYG law was

299
Solotaroff, supra note 2, at 60.
300
Jordan Davis, supra note 298.
301
Solotaroff, supra note 2, at 60.
302
Id.
303
Id.
304
Id.
305
Id.
306
Id.
307
308
309
310
See supra Part IV.
311
See supra notes 233, 235, 236.
312
FLA. STAT. ANN. 776.012-.013; 776.031-.032.
313
Schultz, supra note 181, at 38.
314
Id.
142

conceived and promoted by the NRA.
315
NRA leader Wayne LaPierre said that
Floridas law is the first step of a multi-state strategy to loosen gun laws across
the nation.
316
The NRA strategy to spread right-to-use-your-gun laws
317
state by
state has succeeded.
318
At least 28 states how have SYG-style laws.
319
The rationale
behind the law is purportedly to empower law abiding citizens to freely use self-
defense.
320
The NRAs political action wing, the Institute for Legislative Action
(ILA) used folksy railroad references to explain its legislative strategy. Today,
the NRA is feeding the firebox of Castle Doctrine legislation in states throughout
the country, conducting a self-defense whistle stop campaign that is turning focus
from criminals rights to those of the law-abiding who are forced to protect
themselves.
321
The NRAs use of the phrase castle doctrine is notable because
NRAs castle doctrine is a reinvention of the term.
322

Traditional castle doctrine, discussed above, allowed a person to defend
himself in his home without first retreating.
323
While SYG did codify the castle
doctrine,
324
what makes SYG exceptional is the permission given to gun owners not
simply to use their guns to defend themselves at home, but rather to defend
themselves anywhere.
325
This vastly exceeds true castle doctrine.
326
The law has
been referred to as super castle doctrine,
327
castle doctrine on steroids,
328
and a
legal Incredible Hulk.
329
The expansion of castle doctrine significantly expands a

315
Cf. Solotaroff, supra note 2, at 61 ([Floridas] prolific gun lobbyist , Marion Hammer, rammed
home legislation in 2005 that limited the ability of law enforcement to prosecute shooters who had
evidence of provocation, no matter how slight).
316
Manuel Roig-Franzia, Fla. Gun Law to Expand Leeway for Self-Defense, WASHINGTON POST,
April 26, 2006, http://www.washingtonpost.com/wp-
dyn/content/article/2005/04/25/AR2005042501553.
317
Solotaroff, supra note 2, at 61 (gutted gun laws are only useful to shooters if they know they
wont be charged for opening fire).
318
Among the states that have been reported to have adopted stand your ground laws are:
Alabama, Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine,
Maryland, Michigan, Mississippi, Missouri, Montana, North Carolina, North Dakota, Ohio,
Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia,
Wyoming. Joshua G. Light, Comment, The Castle Doctrine-The lobby is my Dwelling, 22
WIDENER L. J. 219, 225 n.52 (2012) (citing Castle Doctrine, NRA,
http://www.nraila.org/maps/cd.pdf). A state-by-state analysis of self-defense laws is outside the
scope of this comment.
THE CONSERVATIVE POLICY GROUP, THE AMERICAN LEGISLATIVE EXCHANGE COUNCIL (ALEC),
WORKING IN TANDEM WITH THE NRA, ADOPTED AND PROMOTED STAND YOUR GROUND LAWS IN
MANY STATE LEGISLATURES. WEINSTEIN, SUPRA NOTE 220.
319
See supra note 315.
320
See supra note 208.
321
Id.
322
Id. See Solotaroff, supra note 2, at 62 (describing SYGs castle doctrine as a wild debasement
of existing law, this one dating back to a distinctly American iteration of English common law).
323
See supra note 81.
324
325
FLA. STAT. ANN. 776.012-.013; 776.031-.032.
326
Compare Semaynes case, 5 Co. Rep. 91a, 91b, supra note 49 (defining traditional castle
doctrine) with FLA. STAT. ANN. 776.013(5) (defining Floridas castle doctrine under Stand Your
Ground legislation).
327
Holliday, supra note 85, at 408.
328
Daniel Ruth, You Talkin To Me?, TAMPA TRIBUNE, Apr. 22, 2005, at 2.
329
Sebok, supra note 170.
143

persons self-defense rights.
330
And though the no-retreat rule is the majority rule in
the United States, calling it castle doctrine is somewhat disingenuous because castle
doctrine was already recognized in Florida prior to SYG,
331
and SYG is a dramatic
departure from true castle doctrine.
332
Using disarming terminology shows a
sophisticated effort on the part of the NRA to make SYG palatable.

B. The National Rifle Associations Rhetoric

The NRAs strategy has apparently been to sell SYG in a hospitable
environment
333
using appealing language.
334
But the NRA appeals to a particular
slice of the population. The NRA leadership has repeatedly used racially
inflammatory language and ideas to promote their agenda, pitting armed white
victims against racial minority oppressors.
335
Speakers employing racist language
include celebrities like Charlton Heston and Ted Nugent, as well as less prominent
NRA leaders.
336
It is worth repeating specific examples. Charlton Heston used fear-
mongering to rally NRA members, suggesting that white conservatives are under
siege and must fight back.
337
Heston declared:

330
See supra Part III.C.2-5.
331
See James, 867 So. 3d at 416 (discussing Floridas castle doctrine prior to Stand Your Grounds
passage).
332
Aggergaard, supra note 66, at, 668 (discussing State v. Glowacki, 630 N.W.2d 392 (Minn.
2001)) (the court adopted a new no-retreat rule and professed to join a majority of states that do
not require flight from ones home when faced with attack); see supra note 49; see supra Part III.
333
See Shoot-First, supra note 1; see supra note 220; see infra Part V.
334
See supra note 208.
335
See Malloy, supra note 1; see Train, supra note 208; At Last, Balance Shifts Away From
Criminal, NRA-ILA (May 2, 2005), http://www.nraila.org/news-issues/in-the-news/2005/5/at-last,-
balance-shifts-away-from-crimi.aspx?s=%22castle+doctrine%22&st=&ps= [hereinafter Balance]
(Marion Hammer, former NRA President who conceived SYG, wrote Florida`s new Castle
Doctrine law reverses the pendulum that for far too long has swung in the direction of protecting
the rights of criminals over the rights of their victims.); see infra notes 336-358 and
accompanying text; see Eitches, infra note 336, at 8 (discussing the NRAs alienation as
identity).
336
NRA Family Values: The Extremism, Racism, Sexism, Legal Woes, and Gun Industry Ties of the
National Rifle Associations Board of Directors, VIOLENCE POLICY CENTER,
http://www.vpc.org/studies/nrafamst.htm (last visited Mar. 14, 2013) [hereinafter NRA Family
Values]. Prominent NRA board member, Ted Nugent, made the following statement.
[A]partheid isnt that cut and dry. All men are not created equal. The
preponderance of South Africa is a different breed of man. . . . they are
different. They still put bones in their noses, they still walk around naked,
they wipe their butts with their hands . . . These are different people. You
give m toothpaste, they f---ing eat it.
Id. (citing Detroit Free Press Magazine, July 15, 1990).
Nugent further explained, I use the word n----r a lot because I hang around with a lot of n-----rs,
and they use the word n----r, and I tend to use words that communicate. Id.; see Gun War, infra
note 343, at 17. Charlton Heston (Former President), MEET THE NATIONAL RIFLE ASSOCIATION
LEADERSHIP, http://www.meetthenra.org/statement/charlton-heston-former-president-1 (last
visited Feb. 9, 2014); Eliana Rae Eitches, The National Rifle Association and the White Male
Identity, COLUMBIA UNIVERSITY ACADEMIC COMMONS, (Dec. 21, 2012) (discussing the NRAs
rhetoric); Charlton Heston, First Vice-President, Natl Rifle Assoc., Address At The Free Congress
Foundations 20th Anniversary Gala (Dec. 7, 1997), http://www.vpc.org/nrainfo/speech.html
[hereinafter Heston].
337
Id.
144

I . . . realize that a cultural war is raging across our land . . .
storming our values, assaulting our freedoms, killing our self-
confidence in who we are and what we believe, where we come
from. . . . You are a casualty of the cultural warfare being waged
against traditional American freedom of beliefs and ideas.
338

Heston emphasized that conservatives have been assaulted and robbed of
the courage of your convictions, and he then drew a comparison between Jews in
Nazi Germany forced to wear identifying stars, and the cultural pressure facing
conservatives in 1990s America.
339
The suggestion is that if conservatives do not
take up arms against their oppressors, they face their own holocaust. He continued,
[h]eaven help the God-fearing, law-abiding, Caucasian, middle
class, Protestant, or even worse, Evangelical Christian, Midwest
or Southern, or even worse, rural, apparently straight, or even
worse, admittedly heterosexual, gun-owning, or even worse,
NRA-card-carrying average working stiff, or even worse, male
working stiff, because not only you dont count, youre a
downright obstacle to social progress. . . . Thats how cultural
war works. And you are losing.
340

Lest one miss the racial overtones in the culture wars, Heston made them explicit.
The Constitution was handed down to guide us by a bunch of
those wise old dead guys who invented this country. Now, some
flinch when I say that. Why? Its truethey were white guys. . .
. So why should I be ashamed of white guys? Why is Hispanic
pride or black pride a good thing, while white pride conjures
up shaved heads and white hoods?
341

Hestons comments emphasize racial divisions and suggest that whites should
coalesce as a group to further their own interests.
342
Heston encouraged his
audience to fight for their interests against racial minorities and others who are not
white conservatives.
Mainstream America is depending on youcounting on youto
draw your sword and fight for them. These people have precious
little time or resources to battle misguided Cinderella attitudes,
the fringe propaganda of the homosexual coalition, the feminists
who preach that its a divine duty for women to hate men, blacks
who raise a militant fist with one hand while they seek preference
with the other.
343

Heston is far from the only NRA leader who has utilized inflammatory
rhetoric. NRA board member Jeff Cooper made the following defense of American
slavery in his publication Jeff Coopers Commentaries.
344

338
Id.
339
Id.
340
Id.
341
Id.
342
Id.
343
From the Gun War to the Culture War: How the NRA Has Become the Pillar of the Right,
VIOLENCE PREVENTION CAMPAIGN, 10 [hereinafter Gun War].
344
Jeff Cooper, The Big Bang, 8 JEFF COOPERS COMMENTARIES 7, (July 2000), available at
http://myweb.cebridge.net/mkeithr/Jeff/jeff8_7.html [hereinafter 8 COOPERS COMMENTARIES].,
Cooper also wrote, [w]ithout slavery, civilization would never have been achieved, for no one
could ever done anything intellectual if he had to spend all his time hewing and digging and
145

We reflect, in this period of racist agitation, that slavery has been
the normal condition of mankind for most of history. What do you
do with the losers? You either kill them outright or put them to
work. If you pen them up you have to feed them, and you have
enough trouble feeding yourself. Despite this a large number of
semi-literate types in the States seem to think of slavery as a
unique invention of the southern states of the US over a period of
a few generations.
345

It is disturbing that a prominent NRA leader attempted to rationalize or justify the
American institution of slavery, particularly in light of the other racist comments the
NRA leadership has put forth.
The NRA consistently relies on polarizing language: law abiding citizens
are lauded while criminals are demonized.
346
The difficulty with us versus them
language is in the definitions. Who is law-abiding and who is criminal? Wayne
LaPierre, Executive Vice President of the NRA suggested one distinction. [T]he
dirty little secret is [criminals are] overwhelmingly black and hispanic. But
everybodys so scared of being called racist they wont admit the level of killing
among non-white teenaged gangbangers."
347
La Pierre is not alone in labeling racial
minorities as dangerous. Paul Blackman, Research Coordinator of the NRA/ILA
(Institute for Legislative Action), claims that Violence is . . . epidemic only among
young blacks and Hispanics.
348
He explains, [f]or the most part, gun-related
violence is a growing problem among young urban black and Hispanic males.
349

The language conveys the message that law-abiding means white, and criminal
means minorities.
Blackman makes some bold statements that some might consider biased.
He writes that most gunshot accident victims are criminals
350
who are essentially
better off dead.
351
To Blackman, being poor seemingly makes a person more likely
to be a criminal.
352
He apparently fails to consider the systemic racism that can

fighting. Jeff Cooper, Hunting Season, 9 JEFF COOPERS COMMENTARIES 11 (Oct. 2001),
available at http://www.dvc.org.uk/jeff/jeff9.pdf.
345
See 8 COOPERS COMMENTARIES,
346
See Train, supra note 208; Balance, supra note 335.
347
Reva Siegel, Dead Or Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L.
REV. 191, n.230 (2008) (quoting Wayne LaPierre, Executive Vice President, Natl Rifle Assoc.,
Speech Before NRA Annual Meeting in Charlotte, N.C. (May 20, 2000)).
348
Paul H. Blackman, The Federal Factoid Factor on Firearms and Violence: A Review of CDC
Research and Politics, 7 J. FIREARMS & PUB. POLY 21, 30 (1995).
349
Id.
350
Id. at 31-32 (citing Hutson, et. al., Adolescents and Children Injured or Killed in Drive-By
Shootings in Los Angeles, NEW ENG. J. MED. 330, 324-327 (1994) (victims [of gunshot wounds]
are largely unsavory persons; some are just poor; many are just unsavory . . . One recent study
found, for example, that 71% of children and adolescents injured in drive-by shootings were
documented members of violent street gangs.); id. at 31(citing Michael D. McGonigal, et al.,
Urban Firearm Deaths: A Five-Year Perspective, 35 J. OF TRAUMA 532-36) (A recent study of
the victims of gun-related homicides in Philadelphia found that 84% of victims in 1991 had
antemorten drug use or criminal history.)
351
Id. 51-52 (describing how the deaths of alleged criminals are good for society).
352
Id. at 31 (citing GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA (1991) (Even
accident victims are apt to involve persons unusually aggressive, and from the underclass, persons
with criminal records, rather than ordinary citizens.).
146

contribute to crime statistics.
353
Blackmans words suggest that being a racial
minority also makes someone more likely to be a criminal.
354
He explains people
killed with guns are commonly criminals and/or drug abusers. It is quite possible
that their deaths, in terms of economic consequences to society, are net gains.
355

Victims of violence are apparently better off dead.
356

Better off dead is an idea shared by NRA board member Jeff Cooper.
Referring to Los Angeless murder rate, Cooper pronounced, the consensus is that
no more than five to ten people in a hundred who die by gunfire in Los Angeles are
any loss to society. These people fight small wars amongst themselves. It would
seem a valid social service to keep them well-supplied with ammunition."
357
It
follows that some NRA leadership thinks killing so-called criminals benefits
society.
358
Based on the tenor of these statements, it is not surprising that the NRA
has very few minority members.
359

The NRA has used twin tactics of employing racially charged language
360

and fear mongering in promoting its agenda.
361
NRA leader and SYG booster,
Marion Hammer, played on peoples fear of crime in pushing for the passage of
SYG in Florida.
362
In promoting SYG, Hammer, a woman of slight stature,
frequently told a story about the night she pulled a gun on a carload of men who
were threatening her. . . . [S]he said the men quickly took off and the gun saved her

353
See infra notes 397-404 and accompanying text. NRA board member Ken Blackwell and
Family Research Council member Ken Klukowski wrote the tremendous overall success of
Asians and Indians proves theres no systemic racism that keeps all minorities down. Who is the
NRA Leadership?, MEET THE NATIONAL RIFLE ASSOCIATION LEADERSHIP, (last visited Feb. 9,
2011), http://www.meetthenra.org/issues?field_issue_value_many_to_one=Race.
354
See Blackman, supra 348, at 31(citing Fingerhut et. al., Firearm Mortality Among Children and
Youth, NCHS Advance Data No. 178, CDC NATIONAL CENTER FOR HEALTH STATISTICS (Nov. 3,
1989) (Homicide, and particularly escalating homicide rates, largely, are limited to the inner city,
and, indeed, to low-income minorities within inner cities.).
355
Id. at 51-52.
356
Id.
357
Gun War, supra note 343, at 16 (quoting Jeff Cooper, 261Cooper's Corner, GUNS & AMMO,
April 1991, at 104, as cited in NRA Family Values, The Extremism, Racism, Sexism, Legal Woes,
and Gun Industry Ties of the National rifle Associations Board of Directors, VIOLENCE POLICY
CENTER (June 1996)).
358
Id.
359
Robert Farago, Rick Ector: Why The NRA Doesnt Include Blacks, THE TRUTH ABOUT
GUNS.COM (April 25, 2012), http://www.thetruthaboutguns.com/2012/04/robert-farago/rick-ector-
why-the-nra-doesnt-include-blacks (Twelve African Americans at a convention with over 73,700
attendees is as good an example of the RITZ (Round It To Zero) principle as youre going to get);
See generally Gun War, supra note 343.
360
See supra notes 336-357and accompanying text.
361
See infra notes 363-66, and accompanying text; see Train, supra note 208; see infra note 377
and accompanying text; see Schulze, supra note 181 at 39 (commentators have claimed that the
National Rifle Association has succeeded in its attempts to expand SYG laws to more states by
playing on our increasing fears of violence.) (citing Joshua Dressler, Feminist (or Feminist)
Reform of Self-Defense Law: Some Critical Reflections, 93 MARQ. L. REV. 1475, 1481-82 (2010),
see Eitches, supra note 336, at 4-5 (discussing the NRA and its culture of fear); see FREEDOM IN
PERIL, supra note 2 (providing an example of the NRAs use of fear and racial polarization in
promoting its agenda).
362
Gina Jordan, The Lobbyist Behind Floridas Stand Your Ground Law, Around the Nation,
NATIONAL PUBLIC RADIO (Mar. 29, 2012, 4:00 PM) (NPR radio broadcast transcript),
http://www.npr.org/2012/03/29/149591067/the-lobbyist-behind-floridas-stand-your-ground-law.
147

life.
363
Interestingly, Hammer never filed a police report.
364
The subtext of
Hammers story seems to be that guns are the great equalizer, allowing a small
woman to defend herself from a dangerous group of men.
365
Hammer sums up her
fear-inspired ideology by explaining, I heard somebody say one time we dont
shoot to kill, we shoot to live. And thats what its all about, being able to protect
yourself when youre under threat of death or great bodily harm.
366
Though
Hammer justified SYG on the basis of enabling self-defense,
367
the law goes far
beyond traditional notions of bodily protection.
368

NRA rhetoric reveals the values underpinning SYG. What SYG does is
justify more homicides than the old law would have justified or excused.
369
What
SYG says is that law-abiding white people need to arm themselves against
dangerous criminals who are often racial minorities,
370
and the use of deadly force
against them is socially sanctioned and maybe even morally required.
371
Indeed, the
right to kill may be perceived as a duty to kill people identified as a threat.
372
The

363
Id.
364
Weinstein, supra note 220.
365
Some advocates have gone so far as to call gun control measures sexist. An assault weapon
in the hands of a young woman defending her babies in her home becomes a defense weapon. . . .
And the peace of mind she has knowing she has a scary-looking gun gives her more courage
when shes fighting hardened violent criminals. Caitlin Dickson, Gayle Trotter: The Woman Who
Called Gun Control Sexist, THE DAILY BEAST (Feb. 7, 2013, 4:45 AM)
http://www.thedailybeast.com/articles/2013/02/07/gayle-trotter-the-woman-who-called-gun-
control-sexist.html (quoting gun rights advocate Gayle Trotter testifying before the Senate).
366
Jordan, supra note 362.
367
See infra note 399 (quoting Marion Hammer).
368
See supra Parts III.C.
369
Cf. Ross, supra note 5, at 45 (These laws are passed to protect the law-abiding people from
criminals. Yet innocent people may end up being killed because of the new [SYG] law, while
nothing will happen to the killers. No one will be punished. There once was a time when we
punished all homicides. Soon, we will punish none.); see supra Part III.C.
370
See supra notes 336-358and accompanying text; see supra note 216; see Schulze supra note
181 at 40-41 (discussing the message of SYG laws); see Eitches, supra note 336, at 3-5 (discussing
the NRAs culture of fear); (discussing the NRAs culture of fear); see FREEDOM IN PERIL, supra
note 2 (showing an example of the NRAs propaganda); see infra note 399; see Blackman, supra
note 348 at 30; see generally Lawson, supra note 34, for a discussion of racism and SYG law.
371
Some interpretations of castle doctrine transform the right to defend oneself into a duty to
defend the community using deadly force. See Catalfamo, supra note 113, at 543. (citing David I.
Caplan & Susan Wimmershoff-Caplan, Postmodernism and the Model Penal Code v. the Fourth,
Fifth, and Fourteenth Amendments-And the Castle Privacy Doctrine in the Twenty-First Century,
73 UMKC L. Rev. 1076, 1096-1101 (2005)).
In the past, this sense of [southern] community translated the privilege of
non-retreat provided by the castle doctrine into an obligation. Men owed a
duty to their community to see to it that the laws were enforced: if you killed a
would-be robber or rapist, there was no chance that he would continue on to
rob or rape your neighbors. The sense of gratitude from a mans neighbors, if
kills a rapist in his inner-city neighborhood, is inevitably immense: not only
has the man prevented a rape of his wife, and prevented a rape of the home,
but he has protected his neighbors homes, wives, and daughters from the
trauma and horror. (emphasis added) Id.
Of course, this begs the question about how certain of guilt one must be before killing a
would-be criminal, and how many would-be criminals that were killed were
actually innocent.
372
Catalfamo, supra note 113, at 542 n.176 (quoting David I. Caplan & Susan Wimmershoff-
Caplan, Postmodernism and the Model Penal Code v. the Fourth, Fifth, and Fourteenth
Amendments-And the Castle Privacy Doctrine in the Twenty-First Century, 73 UMKC L. Rev.
148

expressive value of SYG instructs that there is an increasing threat and citizens
should take the punishment of would-be violent criminals into their own hands.
373

Because laws express ideas, what a law says is crucial in understanding its
impact.
374
As states follow Floridas lead in adopting stand your ground laws, they
are incorporating the values and assumptions underlie the law.
Expressive law theory explains that people are influenced by ideas
embodied in the law.
375
As SYG law fosters racial divisions
376
and a culture of
fear
377
part of its message is that SYG sanctions greater use of force in self-defense

1076, 1100 (2005)) (A justifiable homicide protected future victims. Dispatching a violent felon
was considered to be not only a prerogative of the victim but also a duty of citizenship and a
welcome service to the community.).
373
See Schulze, supra note 181, at 40.
374
See supra Part IV.
375
Id.
376
377
See Schulze, supra note 181, at 40 (discussing the message of SYG as fear-inducing). Marion
Hammer used fear-based rhetoric to advocate for the passage of SYG legislation.
Florida State Senator Don Gaetz and Florida State Representative Matt Gaetz wrote an op-ed in a
Florida newspaper meant to justify the existence of SYG in the aftermath of the Trayvon Martin
killing.
Consider an elderly woman in a dimly lit parking lot or a college girl walking
to her dorm at night. If either was attacked, [prior to SYGs adoption] her
duty was to turn her back and try to flee, probably be overcome and raped or
killed. Prior to Stand Your Ground, that victim didnt have the choice to
defend herself, to meet force with force.
Calls to repeal Stand Your Ground are anti-woman, Imposing a duty-to
flee places the safety of the rapist above a womans own life. In fact, until
Stand Your Ground was passed, criminals were suing victims because
victims, in protecting themselves, were allegedly using excessive force
against the criminals.
Peter Schorsch, Sen. Don Gaetz & Rep. Matt Gaetz op-ed: Standing up for Stand Your
Ground, SAINTPETERSBLOG, (May 2, 2012), available at
http://www.saintpetersblog.com/sen-don-gaetz-rep-matt-gaetz-op-ed-standing-up-for-
stand-your-ground. The letter was also distributed by the National Rifle Association,
and specifically Marion Hammer . . . to push back on calls for repeal of Stand Your
Ground. Annie-Rose Strasser, Florida Lawmakers Claim Stand Your Ground is
Pro-Woman, Despite Exemption for Domestic Violence, THINK PROGRESS (May 1,
2012), http://thinkprogress.org/justice/2012/05/01/474652/stand-your-ground-anti-
woman. Brian Malte, of the Brady Campaign, stated, Marion Hammer and the NRA
are the masterminds of a dangerous paranoid mentality that got Trayvon Martin killed,
the mentality that is responsible for endangering all our lives. Its based on a lie that
you need to be armed to the teeth anywhere you go. Ann ONeill, NRAs Marion
Hammer Stands her Ground, CNN (Apr. 15, 2012, 9:20 AM),
http://www.cnn.com/2012/04/15/us/marion-hammer-profile.
In fact, the duty to retreat was only required if one could do so safely. Redondo, 380 So.
2d at 1110 (explaining that retreat was only required if it could be done so safely).
A climate of fear helped spread Stand Your Ground, according to the
National District Attorneys Association. In 2007, it conducted the first in-
depth study on the expansion of the castle Doctrine and found that it took root
in part because there was a change in perceptions of public safety after the
terrorist attacks of 9/11. Many citizens . . . became concerned that
government agencies could not protect every citizen in the event of
subsequent terror attacks. Indeed, the NRA used 9/11 to promote its
legislative agenda, most notably in its unsuccessful push to let airline pilots
pack heat.
149

against racial minorities.
378
By tapping into a victim/oppressor concept, the NRA
has harnessed a powerful framework for establishing the importance of the right to
defend oneself. Setting up a victim/oppressor dichotomy
379
allows the actor using
self-defense to assert a purported moral high ground while maintaining a
sympathetic posture.
380
Not only does the NRA engender an us versus them
mentality with respect to individuals,
381
it sets itself up as a victim of the culture
wars,
382
a defender of white culture,
383
and a bastion of the values established by the
founding fathers.
384
One commentator asserts that the NRA [sees] itself [as] a
David called by God to do battle against its own Goliath.
385
The NRA has
compared its struggle to the Jews in Nazi Germany,
386
and it has suggested that
those who oppose it are un-American.
387
This victimhood perspective is crucial to
justifying SYG.
But even as it asserts an overarching victimhood rationale, by its own
admission SYG is not strictly necessary to protect the law-abiding citizens it
portrays as victims.
388
NRA leadership has explicitly denied that white middle class
Americans are commonly the victims of violent crime.
389
NRA research
coordinator, Blackman, explains, [h]omicide, and particularly escalating homicide
rates, are largely limited to the inner city, and indeed, to low-income minorities

Weinstein, supra note 220 (discussing Jansen & Nugent-Borakove, supra note 165 at 4); see
generally Eitches, supra note 336 (discussing the NRAs culture of fear); see FREEDOM IN PERIL,
supra note 2 (showing an example of NRA propaganda).
378
See Catalfamo, supra note 372; see supra note 377.
379
See supra notes 336-357 and accompanying text; see Heston, supra note 338 and accompanying
text (describing the NRA audience as a casualty of the cultural warfare); see generally Eitches,
supra note 336 (discussing the NRAs culture of fear); see FREEDOM IN PERIL, supra note 2
(showing an example of NRA propaganda)
380
See Andrew J. Karmen, Whos Against Victims Right? The Nature of the Opposition to Pro-
Victim Initiatives in Criminal Law, 8 ST. JOHNS J. LEGAL COMMENT. 157, 157 (1992) (Who
could oppose the legitimate demands of people espousing such a just and noble cause as the
empowerment of innocent victims who suffered physical injuries, psychological harm, or
financial losses?).
381
See infra notes 393-394 and accompanying text; see Eitches, supra note 336, at 9 (quoting
DOUGLAS KELLNER, GUYS AND GUNS AMOK: TERRORISM AND SCHOOL SHOOTINGS FROM THE
OKLAHOMA CITY BOMBING TO THE VIRGINA TECH MASSACRE 25 (2008)) (discussing the NRAs
us versus them mentality).
382
See generally Gun War, supra note 343 (discussing the NRA and the culture war).
383
See Eitches, supra note 336, at 10 (quoting Kellner, supra note 14, at 94) (discussing white
male identity politics and perceived threats to white american values and people).
384
Id. at 7-9 (discussing WAYNE LA PIERRE, GUNS, CRIME, AND FREEDOM 15 (1994) (La Pierre
avers that historical research shows that the founding fathers out NRAed the NRA).
385
Eitches, supra note 336, at 6 (quoting Kevin Lewis ONeill, Armed Citizens and the Stories
They Tell: The National Rifle Association and Masculinity, 9 MEN AND MASCULINITIES 457, 469
(Apr. 2007)).
386
387
Eitches, supra note 336, at 7 (quoting ERIK LARSON, LETHAL PASSAGE: HOW THE TRAVELS OF
A SINGLE HANDGUN EXPOSE THE ROOTS OF AMERICAS GUN CRISIS 137 (1994) (discussing how
the NRA distorts anti-gun into anti-Constitution).
388
Cf. Blackman, supra note 348, at 30 (Violence is endemic in American, but it is epidemic only
among young blacks and Hispanics. For most other age-and-ethnic-groups, gunshot wounds are
stable or declining. . . . For the most part, gun-related violence is a growing problem among young
urban black and Hispanic males.); see supra notes 347-349 for a discussion of the definition of
law-abiding.
389
Id.
150

within inner cities.
390
Decreasing crime rates further undermine the justification
for the law.
391
Violent crime rates have actually significantly decreased since the
1990s.
392
In advocating for SYG, former NRA President, Marion Hammer, admitted
that the law was not written in reaction to specific instances of crime, but instead to
increase the rights of victims in light of the rights provided by the law to
criminals.
393
The racially charged dichotomy between victims and criminals,
frequently discussed by the NRA, is at the heart of SYGs rationale.
394

VII. RACE, IMPLICIT BIAS, AND STAND YOUR GROUND

SYG intersects with racial bias in two ways. As discussed previously, it
reinforces racial bias.
395
First, the message embedded in the law is that racial
minorities are dangerous,
396
and the use of force against them is socially acceptable
and necessary.
397
Second, it puts racial minorities at greater risk of being harmed by
aggressive self-defense because of implicit bias/stereotypes that minorities are
criminals.
398
The purpose of SYG was to remove impediments to the use of deadly
force in self-defense.
399
Critics of the law assert that it encourages vigilantism, thus

390
Id. at 31.
391
Janine Young Kim, The Rhetoric Of Self-Defense, 13 BERKELEY J. CRIM. L. 261, 267 (2008)
(citing Andrew D. Leipold, Recidivism, Incapacitation, and Criminal Sentencing Policy, 3 U. ST.
THOMAS L. J 536, 554, n.83 (2006)) (explaining that the majority of the population mistakenly
thinks crime rates are increasing in spite of actual decreases in the 1990s). Steven Jansen, vice
president and CEO of the Association of Prosecuting Attorneys and a former prosecutor in
Detroit[noted] the law was troublesome to me.We didnt really see a public safety need for it,
and it could only muddy the legal waters. Weinstein, supra note 220.
392
Black America: Nearer to Overcoming, THE ECONOMIST, May 8, 2008, available at
http://www.economist.com/node/11326407 (Violent crime has also fallen sharply since the
1990s).
393
Michael supra note 2, at 203, (discussing Marion Hammer, At Last, Balance Shifts Away from
Criminals, ATLANTA JOURNAL-CONSTITUTION, May 2, 2005 at 11A) (the bill was not
introduced in response to a specific case or incident but rather was an attempt to counterbalance
the protection courts give to the rights of criminals).
394
Compare supra notes 336-357 and accompanying text, with supra notes 380-382 and
accompanying text; see FREEDOM IN PERIL, supra note 2 (illustrating the NRAs notion of victims
and criminals).
395
See supra Part VI.B.
396
See supra Part VI; see supra notes 336-358 and accompanying text; see supra note 388.
397
Train, supra note 208; Balance, supra note 335; Blackman, supra note 348, at 51-52 (It is
quite possible that their deaths, in terms of economic consequences to society, are net gains.); see
supra notes 371-373 and accompanying text; see supra Part VI.B, see supra notes 371, 372.
398
Ross, supra note 5, at 35 (citing DEATH WISH (Paramount 1974)) These new [SYG] statutes
present potential danger for society at large, but they particularly endanger racial minorities. These
statutes create a vigilante atmosphere.); see infra Part VII.
399
Former NRA President Exposes the Lies and Misinformation Aimed at Floridas Castle
Doctrine Law, DEMOCRATIC UNDERGROUND,
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x444678
(last visited Feb. 27, 2014). Following is a quote from Marion Hammer describing the purpose of
SYG.
The castle law doctrine has three major components. It restores the right of a
law-abiding citizen to protect himself and his family in his home. It
establishes the presumption that if someone breaks into your home or
forcefully intrudes into your home of your occupied vehicle, that they are
there to do harm and that you may therefore use force, including deadly force,
to protect yourself and your family and you are not going to be badgered by a
151

emboldening people to take the law into their own hands.
400
Traditional self-defense
law limited actors to using necessary force.
401
SYG allows greater use of deadly
force and particularly exposes minorities to danger because of entrenched racial
bias.
402
The racial bias that minorities live with in America puts them at greater risk
because people are more likely to perceive minorities as threats as compared to
white people, even when they are acting innocently.
403

While one might argue that it is rational to perceive blacks as more
threatening in light of the disproportionate numbers of blacks convicted of
crimes,
404
these convictions are largely a product of socioeconomic status and
systemic bias.
405
National drug enforcement policies have placed an undue
emphasis on policing communities of color, thereby producing disproportionate
arrests and incarceration of racial minorities.
406
In addition, laws that severely
penalize drug possession in school zones unequally affect people of color largely
because racial-minority urban communities tend to be more densely populated and
contain more schools than rural white communities.
407
Socioeconomic disparities
affect the justice system because people of color are disproportionately low income
[and] . . . are more likely to rely on an overburdened public defense system and . . .
[have] limited access to treatment and alternative sentencing options.
408
Finally,
race can play a role in prosecutors charging decisions.
409
Whether due to

justice system that protects criminals. . . . The second thing that it does is it
removes the duty to retreat when you are under attack by a criminal. . . . The
third component deals with a prohibition against civil lawsuits by criminals or
the families of criminals who had begun to profit by their crimes by suing
victims who may have harmed or killed criminals who were attacking them or
intruding into their homes.
Id.
Id.; see supra Part III.C.
400
See Ross, supra note 5, at 35 (citing People v. Goetz, 497 N.E. 2d 41 (N.Y. 1986) and PAUL H.
ROBINSON, CRIMINAL LAW: CASE STUDIES & CONTROVERSIES, TEACHERS MANUAL 503 (2005).
Miami police chief, John Timoney, called SYG a License to Murder, that would lead to a higher
murder rate in Florida. ONeill, supra note 377.
401
See ONeill, supra note 377; see supra Part III.
402
Ross supra note 5, at 35 (These new statutes present potential danger for society at large, but
they particularly endanger racial minorities.); see supra note 214.
403
Cf. Cynthia Kwei Yung Lee, Race and Self-Defense: Toward a Normative Conception of
Reasonableness, 81 MINN. L. REV. 367, 403 (1996) (citing Adeno Addis, Hell Man, They Did
Invent Us: The Mass Media, Law, and African Americans, 41 BUFF. L. REV. 523, 555 (1993)
(One of the stereotypes most often applied to African American males is that they are more
dangerous, more prone to violence, and more likely to be criminals or gang members than other
members of society.).
404
Marc Mauer & Ryan S. King, Uneven Justice: State Rates of Incarceration by Race and
Ethnicity, THE SENTENCING PROJECT 3(2007),
http://www.sentencingproject.org/doc/publications/rd_stateratesofincbyraceandethnicity.pdf
(African Americans are incarcerated at nearly six (506) tunes the rate of whites; Hispanics are
incarcerated at nearly double (1.8) the rate of whites).
405
Id. at 16-19.
406
Due to the intersection of racially skewed policing and sentencing policies, the federal crack
cocaine mandatory sentencing laws, for example, have produced highly disproportionate rates of
incarceration for low-level offenses. Id. at 17.
407
Urban offenders are more likely to be near a school. Id.
408
Id. at 18.
409
Ellen S. Podgor, Race-ing Prosecutors Ethics Codes, 44 HARV. C.R.-C.L. L. REV. 461, 467
(2009) (Prosecutorial discretion not only provides broad authority to bring or not bring criminal
charges, it can also serve to mask racial bias.).
152

personally held bias or in response to public pressure, prosecutors may selectively
prosecute racial minorities. With little prosecutorial oversight,
410
implicit bias and
the resulting inequality affect both society
411
and the criminal justice system.
412

Social scientists writing about implicit bias recognize that most racialized
conduct or thought is unconscious, rather than intentional.
413
The law has made
progress toward equality by forbidding intentional discrimination via the use of
racial classification in employment, education and housing.
414
Incidents of explicit
discrimination have declined in the past 25 years.
415
Blacks, however, suffer far
more than whites, on average, in areas of poverty, substandard housing,
unemployment, low quality education, and high rates of incarceration, due in part to
entrenched bias.
416
The law falls short of remedying implicit bias because the
Supreme Court has limited judicial remedies to intentional discrimination.
417

Unconscious racism, bias, and stereotyping fall outside the scope of legal
remedies.
418

Unconscious racism has gained recognition as the primary cause of
persistent racial inequality.
419
Stereotypes are one way to understand racial bias.
420

410
Charles E. MacLean & Stephen Wilks, Response & Perspective: Keeping Arrows in the quiver:
Mapping the Coutours of Prosecutorial Discretion, 52 WASHBURN L. J. 59, 71 (2012) (quoting
Angela J. Davis, Prosecutors Overreaching Goals Unchecked, NY TIMES (Aug. 19, 2012, 7:00
PM) http:// www.nytimes.com/roomfordebate/2012/08/19/do-prosecutors-have-too-much-
power/federal-proscutors-have-way-too-much-power (We live in a democracy in which we hold
accountable those to whom we grant power, but we have fallen short when it comes to
prosecutors.).
411
See generally L. Elizabeth Sarine, Comment, Regulating the Social Pollution of Systemic
Discrimination Caused by Implicit Bias, 100 CALIF. L. REV. 1359, 1364-1367 (discussing the
pervasiveness of implicit bias).
412
Cf. Mauer & King, supra note 404, at 18.
413
R.A. Lenhardt, Understanding The Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L.
Rev. 803, 803 (2004).
414
Id. at 806 (citing Brown, 347 U.S. 483) (discussing race and education); (citing Shelley v.
Kraemer, 334 U.S. 1 (1948)) (discussing race and housing); (citing Griggs v. Duke Power, 401
U.S. 424 (1971)) (discussing race and employment).
415
L. Song Richardson & Phillip Atiba Goff, Essay, Self-Defense and the Suspicion Heuristic, 98
IOWA L. REV. 293, 311 (2012) (citing Lawrence Bobo, Whites Opposition to Busing: Symbolic
Racism or Realistic Group Conflict?, 45 J. PERSONALITY & SOC. PSYCHOL. 1196, 1196 (1983));
John F. Dovidio, On the Nature of Contemporary Prejudice: The Third Wave, 57 J. SOC. ISSUES
829, 834 (2001); Phillip Atiba Goff, Claude M. Steele & Paul G. Davies, The Space Between Us:
Stereotype, Threat and Distance in Interracial Contexts, 94 J. Personality & Soc. Psychol. 91, 91
(2008); see, e.g., Philip Perlmutter, The Decline of Bigotry in America, 46 SOC. 517 (2009)).
416
EDUARDO BONILLA-SILVA, RACISM WITHOUT RACISTS: COLOR-BLIND RACISM AND THE
PERSISTENCE OF RACIAL INEQUALITY IN CONTEMPORARY AMERICA 1-2 (2010) (internal citations
omitted); Lenhardt, supra note 413, at 806-07.
417
Lenhardt, supra note 413, at 803 (The Supreme Court regards intentional discrimination as the
principal source of racial injury in the United States.). Racial stigma is seen by the court as one
of the harms of intentional discrimination, not one of its causes. Id. at 875. See, e.g. Shaw v.
Reno, 509 U.S. 630 (1993); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
418
Cf. Lenhardt, supra note 413, at 877 (In failing to adopt a consistent approach to racial stigma,
the Court, in a very real sense, becomes complicit in its perpetuation.).
419
Id. at 808-09 (discussing Charles R. Lawrence III, The Id, the Ego And Equal Protection:
Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 330, 332 (1987)) (racial motive was
most often reflected in unconscious conduct bearing a disparate racial impact).
420
Lee, supra note 403, at 401 (In self-defense cases involving defendants or victims of color,
race, or to be more precise, racial stereotypes, may influence our assessment of whether the
defendants use of force against the victim was reasonable.).
153

Ample evidence demonstrates that blacks are more likely to be perceived as a threat
than whites.
421
A common stereotype contributing to negative perceptions of black
people is the black-as-criminal stereotype.
422
Television media portrayals
reinforce these negative racial stereotypes, causing white viewers to be more
fearful of crime when around African Americans or in the assumed presence of
African Americans.
423
Stereotypes perpetuate negative perceptions of members of
the stereotyped group.
424
The Black-as-criminal stereotype may cause people to
perceive ambiguously hostile acts as violent when a Black person engages in those
acts and non-violent when a non-Black person engages in the same acts.
425
Race
bias is extremely pervasive. About 70% of people who have taken a race-bias . . .
test were found to exhibit an unconscious, or implicit, preference for white people
compared to blacks.
426
This is true among blacks and whites,
427
including people
who do not consciously harbor racist thoughts and consider themselves unbiased.
428

Even children often harbor race bias.
429

421
Id. at 401 (people tend to view the behavior of Blacks as more hostile or aggressive than the
same behavior conducted by Whites).
422
Id. at 402 (discussing the Bernhard Goetz case).
423
See generally Shannon T. Issacs , Portrayal of African Americas in the Media: An Examination
of Law and Order, PENNSYLVANIA STATE UNIVERSITY, 173,
http://forms.gradsch.psu.edu/diversity/mcnair/mcnair_jrnl2010/files/Isaacs.pdf (last visited Mar.
24, 2013) (citing Moellar (1989); St. John & Herald-Moore (1996)).
424
Cf. id.
425
Lee, supra note 403, at 404-405 (discussing Birt L. Duncan, Differential Social Perception and
Attribution of Intergroup Violence: Testing the Lower Limit of Stereotyping of Blacks, 4 J.
PERSONALITY & SOC. PSYCHOL. 590, 592-97 (1976)). Studies have borne out the suspicion that
Americans view black people as generally more dangerous than whites. Id. In Birt Duncans study,
university students watched an intense argument between two individuals which ended in one
individual pushing the other. Student observers then evaluated and described the behavior of the
pusher. Four racial configurations were examined: white pusher/white victim, black pusher/ black
victim, white pusher/black victim and black pusher/white victim.
Duncan found that when the person shoving was a Black person and the
person being shoved was White, 75% of the subjects thought the shove
constituted violent behavior, while only 6% characterized the shove as
playing around. When subjects observed the same events with a White
person as the shover and a Black person as the victim, only 17% characterized
the White persons shove as violent, while 42% described the White
persons shove as playing around. Duncan concluded that the threshold for
labeling an act as violent was significantly lower when subjects viewed a
Black person committing the act than when subjects viewed a White person
committing the same act.
Id. at 404-05. One can readily extrapolate to the application of force in self-defense. If use of
deadly force is justified when one perceives a threat, and blacks are perceived as highly more
threatening, they are more likely to be the victims of mistaken deadly force. Cf. id. (discussing
Birt L. Duncan, Differential Social Perception and Attribution of Intergroup Violence: Testing the
Lower Limit of Stereotyping of Blacks, 4 J. PERSONALITY & SOC. PSYCHOL. 590, 592-97 (1976).
426
Benforado, supra note 214, at 39 (citing Predictive Validity Meta-Analysis of the Implicit
Association Test is Published, PROJECT IMPLICIT (June 19, 2009)).
427
Id. (citing Brian A. Nosek, et al., Harvesting Implicit Group Attitudes and Beliefs from a
Demonstration Web Site, 6 Group Dynamics 101, 104-05 (2002).
428
Id. (citing Joy Gaba & Nosek, The Surprisingly Limited Malleability of Implicit Racial
Evaluations, 41 SOC. PSYCHOL. 137, 137 (2010) and Brian A. Nosek, et al., Pervasiveness and
Correlates of Implicit Attitudes and Stereotypes, 18 EUROPEAN REV. SOC. PSYCHOL. 1, 36 (2007)).
429
Lenhardt, supra note 413, at 832-33 (discussing Linda Hamilton Kreger, The Content of Our
Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,
STAN. L. REV. 1161, 1188 (1995), discussing H. Andrew Sagar & Janet Ward Schofield, Racial
154

Legal scholars have developed the idea of implicit bias and assumptions
about criminality, labeling it the suspicion heuristic.
430
The work combines the
ideas of heuristics or unconscious mental shortcuts,
431
with analysis of
unconscious racial bias.
432
Research on the automatic associations between the

and Behavior Cues in Black and White Childrens Perceptions of Ambiguously Aggressive Acts, 39
J. PERSONALITY & SOC. PSYCHOL. 590 (1980)). In a study discussed by Lenhardt, elementary
school students were shown a picture representing two children sitting at desks in school, one
seated behind the other. Id. The scene was characterized as Mark was sitting at his desk, working
on his social studies assignment, when David started poking him in the back with the eraser end of
his pencil. Mark just kept working. David kept poking him for a while, and then he finally
stopped. Id. When David, the poker, was portrayed as black, the students perceived him as more
aggressive than when he was portrayed as white. Id. The studys outcome indicates that even
children perceive blacks as more threatening. Id. Stigma and stereotypes are related, though not
identical, ways of understanding prejudice. Id. at 830-31 (citing Jennifer Crocker et al. Social
Stigma, in 2 THE HANDBOOK OF SOCIAL PSYCHOLOGY 511 (Gilbert et al. eds. 4th ed. 1998)).
Racial stigma and stereotypes . . . play mutually reinforcing roles in the dehumanized and
marginalizationsocial, as well as economic and political,--of minority groups[R]acial stigma
contributes to the development of negative racial stereotypes about stigmatized groups. Id.
Stigmas lead to stereotypes, which become so ingrained as to be subconscious. Id. at 832 (citing
Jody Amour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice
Habit, 83 CAL. L. REV. 733, 741 (1995).
430
Richardson & Goff, supra note 415, at 296-97 (discussing DANIEL KAHNEMAN, FAST
THINKING AND SLOW and Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty:
Heuristics and Biases, 185 SCIENCE 1124, 1124-34 (1974)). Racial stigmas are one way to
understand implicit racial bias. Lenhardt, supra note 413, at 808-09 (discussing Charles R.
Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39
STAN. L. REV. 317 (1987). Racial stigma goes beyond stereotyping and slurs, and can be defined
as negative social meaning of dishonorable meanings socially inscribed on arbitrary bodily
marks [such as skin color], of soiled collective identities. Id. (discussing ERVING GOFFMAN,
STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY (1963) and GLENN C. LOURY, THE
ANATOMY OF RACIAL INEQUALITY (2002)). The person bearing the racialized attribute is not
only disliked but socially dehumanized, a devalued individual whose ability to participate as a full
citizen in society is fundamentally compromised by the negative meanings associated with his or
her racial status. Id. at 818 (citing ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT
OF SPOILED IDENTITY (1963)). While many may consciously and intentionally mean to be color
blind and imagine themselves as unprejudiced, cognitive economy serves to reinforce
stigmatized thinking. See id. at 826 (Charles Stangor & Christian S. Crandall, Threat And The
Social Construction of Stigma, in THE SOCIAL PSYCHOLOGY OF STIGMA, 63-64.) People use
unconscious mental shortcuts to make sense of their environments, fitting people and objects into
easily recognizable categories, making it very difficult to examine the ideas that underlie thoughts
and actions. Id. (citing STEPHEN C. AINLAY ET AL. STIGMA RECONSIDERED IN THE DILEMMA OF
DIFFERENCE: A MULTIDISCIPLINARY VIEW OF STIGMA 18-21 (Stephen C. Ainlay et al. eds, 1986);
Charles Stangor & Christian S. Crandall, Threat And The Social Construction of Stigma, in THE
SOCIAL PSYCHOLOGY OF STIGMA, 63-64.)
431
Richardson & Goff, supra note 415, at 296-97 (citing DANIEL KAHNEMAN, THINKING FAST
AND SLOW (2011); see supra notes 422-425 and accompanying text.
432
Richardson & Goff, supra note 415, at 296-97 (In the field of social psychology, researchers
have found that implicit biases tend to disadvantage stigmatized social groups such as Blacks,
women, and the poor.) (citing Joshua Correll et al., Across the Thin Blue Line: Police Officers
and Racial Bias in the Decision To Shoot, 92 J. PERSONALITY & SOC. PSYCHOL. 1006, 1015-22
(2007); Eberhardt, supra note 8, at 876, 888-g1; Phillip Atiba Goff et al., Not Yet Human: Implicit
Knowledge, Historical Dehumanization, and Contemporary Consequences, 94 PERSONALITY &
SOC. PSYCHOL. 292, 302-05 (2008); Brenda Major & Laurie T. O'Brien, The Social Psychology of
Stigma, 56 ANN. REV. PSYCHOL. 393, 396,400,407-o8 (2005); Heather E. Bullock, Class Acts:
Middle-Class Responses to the Poor, in THE SOCIAL PSYCHOLOGY OF INTERPERSONAL
DISCRIMINATION 118, 1 18-59 (Bernice Lott & Diane Maluso eds., 1995)).
155

stereotype of blacks and criminal have found strong automatic mental
connections, even among consciously unprejudiced study participants.
433
The
concept of suspicion heuristic is that biases . . . and implicit racial associations . . .
explain how merely perceiving race - even absent racial animus - can influence
judgments of criminality beyond conscious awareness.
434
The biased person may
be completely unaware of his bias.
435

Suspicion heuristic, coupled with SYG and no retreat laws, place blacks at
greater risk of violence because when making split second, life-or-death decisions,
people unconsciously rely on mental categories, rather than careful rational thought,
when deciding whether to use deadly force in self-defense.
436
Under these
circumstances, the fact that blacks are more likely to be perceived as criminals, and
thus more threatening, increases the odds that they will be shot in mistaken self-
defense.
437
The suspicion heuristic reveals that the right to act in self-defense can
place those stereotyped as criminal at greater risk of death or serious bodily injury at
the hands of those who honestly, but mistakenly, fear them.
438
By at least one
measure, blacks suffer substantial injuries because, nationally, 54% of victims of all
gunshot wounds are black.
439

Mistaken self-defense becomes significantly more threatening when guns
are widely available and carried.
440
Guns increase the probability that mistakes will
be deadly, as well as the likelihood that a person will act quickly without enough
information to make a sound decision.
441
Criminologists say that when people with
guns get the message that they have a right to stand and fight, rather than retreat, the
threshold for using that gun goes down.
442
Studies show that because of implicit
biases, Americans are faster and more accurate when firing on armed blacks than
when firing on armed white, and faster and more accurate in electing to hold their
fire when confronting unarmed whites than when confronting unarmed blacks.
443

433
Id. at 302 (citing L. Song Richardson, Arrest, Efficiency, and the Fourth Amendment, 95 MINN.
L. REV. 2035, 2043-56 (2011), Patricia G. Devine, Stereotypes and Prejudice: Their Automatic
and Controlled Components, 56 J. PERSONALITY & SOC. PSYCHOL. 5, 6-7, 15-6 (1989)).
434
Id. at 307.
435
See Id.
436
Id. at 309-10 (Faced with a potentially life-threatening situation, people are unlikely to take the
time necessary for deductive reasoning. Rather, they will make their judgments of criminality
quickly, based on only small slices of behavior).
437
Cf. id. at 310 (citing Correll et al., The Police Officers Dilemma: Using Ethnicity to
Disambiguate Potentially Threatening Individuals, 83 J. PERSONALITY & SOC. PSYCHOL. 1314,
1718-8 (2002) (This is because Blacks serve as our mental prototype (i.e. stereotype) for the
violent street criminal.).
438
Id. at 326.
439
Benforado, supra, note 214, at 20 (citing Marianne W. Zawitz & Kevin J. Strom, Firearm
Injury and Death From Crime, Dept of Just., Bureau of Statistics, 1993-97 (2000)).
440
Richardson & Goff, supra, note 415, at 331 (the ready availability of guns increases the
likelihood of mistakes since a person can no longer rely upon close physical proximity to deduce
the victims intent).
441
Cf. id.
442
Kris Hundley, Susan Taylor Martin & Connie Humburg, Florida Stand Your Ground Law
Yields Some Shocking Outcomes Depending on How The Law Is Applied, TAMPA BAY TIMES, June
1, 2012, available at http://www.tampabay.com/news/publicsafety/crime/florida-stand-your-
ground-law-yields-some-shocking-outcomes-depending-on/1233133 [hereinafter Shocking
Outcomes].
443
Cf. Benforado, supra note 214, at 3.
156

Requiring retreat before employing deadly force in self-defense would help prevent
deadly mistakes, particularly those inflicted on racial minorities.
444

VIII. STAND YOUR GROUNDS APPLICATION

A. Race and Stand Your Grounds Application in Florida

As the implicit bias studies suggest, SYG has arguably been applied
disparately to racial minorities.
445
One significant criticism of Floridas SYG law is
that there is no tracking system following the laws application.
446
In the absence of
effective tracking,
447
news organizations have tried to fill in the gaps. The Tampa
Bay Times analyzed approximately 200 SYG cases on the basis of race and found
differential treatment depending on the race.
448
Seventy-three percent of those
who killed a black person faced no penalty compared to fifty-nine percent of those
who killed a white.
449
Criminologist Kareem Jordan attributed these outcomes to
unconscious bias resulting from how the media depicts black life.
450
The Tampa
Bay Times has done an extensive analysis of SYG cases and found many cases
where people went free after killing a black victim under questionable
circumstances.
451
These statistics, though incomplete, confirm that bias may affect
SYGs application.

B. Stand Your Ground and the Privatization of Law Enforcement

SYG and neighborhood watch efforts may be affected by implicit bias on
several levels. First, neighborhood watch volunteers can be influenced by their own

444
See Richardson & Goff, supra note 415, at 332-333.
445
Cf. Shocking Outcomes, supra note 442 (If you claim stand your ground as the reason you
shot someone, what happens to you can depend less on the merits of the case than on who you are,
whom you killed and where your case is decided. . . . Defendants claiming stand your ground are
more likely to prevail if the victim is black.); John K. Roman, Race, Justifiable Homicide, and
Stand Your Gound Laws: Analysis of FBI Supplementary Homicide Data, URBAN INSTITUTE 7
(July 2013), available at http://www.urban.org/UploadedPDF/412873-stand-your-ground.pdf
Overall, states with SYG laws have statistically significant higher rates of
justifiable homicides than non-SYG states (p < 0.0001). The presence of a
SYG law is associated with a statistically significant increase in the likelihood
that a homicide is ruled to be justified for white-on-black . . . homicides. The
change in likelihood for black-on-white homicides being found justified is not
significant.
Id.
446
Shocking Outcomes, supra note 442 (When police and prosecutors decide not to press charges,
they don't always keep records showing how they reached their decisions. And no one keeps track
of how many "stand your ground" motions have been filed or their outcomes.).
447
Susan Taylor Martin, Kris Hundley & Connie Humburg, Race Plays Complex Role in Floridas
Stand Your Ground Law, TAMPA BAY TIMES (June 2, 2012, 12:00 PM)
http://www.tampabay.com/news/courts/criminal/race-plays-complex-role-in-floridas-stand-your-
ground-law/1233152 [hereinafter Complex Role] (No one knows for sure how often stand your
ground is used for a defense or what racial and ethnic groups are most affected by it. Thats
because no one keeps track of race or ethnicity in those cases.).
448
Shocking Outcomes, supra note 442.
449
Id.
450
Complex Role, supra note 439.
451
Id.
157

implicit biases to act aggressively toward racial minorities in their policing
efforts.
452
Many observers speculate that racial profiling was a cause of Trayvon
Martins killing.
453
Second, if the law implies that homeowners should take up arms
against minority criminals, biases and stereotypes of blacks-as-criminals are
reinforced.
454

SYG empowers private citizens to zealously police their neighborhoods
with little oversight.
455
[S]elf-defense doctrines and the right to bear arms have
been expanded; allowing private citizens greater power to conduct police-like
activities without legal restrictions found in the rules of criminal procedure.
456

Police powers are limited by the Constitution,
457
but constitutional limits do not
apply to private actors,
458
so private citizens can act with greater impunity than
police.
459
Under some circumstances, private citizens have the right to arrest other
citizens.
460
Private law enforcers may attempt to question and search people while
on patrol, all without constitutional limitations.
461
Further, neighborhood watch

452
See Finegan, supra note 115, at 125 (citing Donald Braman, Cultural Cognition and the
Reasonable Person, 114 LEWIS & CLARK L. REV. 1455, 1461 (2010)) (Burdened by (and perhaps
unaware of) their own individual biases and without procedural rules or training to restrict them
from acting on those biases, neighborhood watch members may target individual suspects based
upon their race or ethnicity.).
453
Id. at 125 n.231 (citing Robin Givham, Hoodies, Trayvon Martin, and Americas Racial Fears,
THE DAILY BEAST, http://www.thedailybeast.com/articles/2012/03/29/hoodies-trayvon-martin-
andamerica-s-racial-fears.html (Mar. 29, 2012); Peter Grier, Trayvon Martin case: Is hoodie a
symbol of menace or desire for justice?, CHRISTIAN SCIENCE MONITOR,
http://www.csmonitor.com/USA/Justice/2012/0326/Trayvon-Martin-case-Ishoodie-
a-symbol-of-menace-or-desire-for-justice-videoChristian Science Monitor (Mar. 26, 2012)).
454
Cf. Lee, supra note 403, at 401 (discussing the Black as criminal stereotype); Heston, supra
note 338 (describing the NRA audience as a casualty of the cultural warfare); see supra note
377; Blackman, supra note 348, at 30; Schulze, supra note 181, at 40; Train, supra note 208;
Balance, supra note 335; Blackman, supra note 348, at 51-52 (It is quite possible that their
deaths, in terms of economic consequences to society, are net gains.); see supra Part VI.B.
455
Cf. Finegan, supra note 115, at 107(citing Ric Simmons, Private Criminal Justice, 42 WAKE
FOREST L. REV. 911, 935 (2007).
456
Id.
457
Terry v. Ohio, 392 U.S. 1, 8 (1968) (The Fourth Amendment provides that the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.). The exclusionary rule prevents the admission of illegally
obtained evidence. Id. at 13.
458
Finegan, supra note 115, at 111 (citing BRIAN FORST & PETER K. MANNING, THE
PRIVATIZATION OF POLICING 4 (1999) (The Supreme Court has repeatedly held that the
application of the Fourth, Fifth, Sixth, and Fourteenth Amendments are limited to governmental
conduct..).
459
Constitutional limitations on police are inapplicable to private actors. Id. at 128-29 (quoting
David Slansky, The Private Police, 46 U.C.L.A. L. REV. 1165, 1186 (1999) ([E]vidence generated
by an illegal arrest by a police officer is, as a general matter, inadmissible against a criminal
defendant; the fruits of a private illegality are not similarly excluded.). Id.at 114 (quoting FORST
& MANNING , THE PRIVATIZATION OF POLICING: TWO VIEWS 21 (1999) (Private agents have the
authority to stop and challenge any person, without probable cause, for trespassing in a designated
private area, and they can make arrests without having to give Miranda warnings to arrestees.).
460
Finegan, supra note 115, at 113 (citing Lester Bernhardt Orfield, CRIMINAL PROCEDURE
FROM ARREST TO APPEAL, at 7 (1947) (at common law, arrests might be made either by a
privilege person or by a police officer); see supra note 459.
461
See supra note 459.
158

volunteers may interpret SYG as permission to use force, as arguably occurred in
the Trayvon Martin case.
462

Certainly, a suspect can refuse to answer questions or have his
person searched by a member of a neighborhood watch,, and can
walk away at will. But when that neighborhood watch member
carries a weapon and is authorized to defend himself with deadly
force should a confrontation ensue, the power of the
neighborhood watch to coerce a suspect into stopping or
permitting a search greatly increases.
463

Neighborhood watch volunteers carrying guns makes resistance to their instructions
much riskier.
464

Further compounding the potential abuses of private law enforcers is the
risk that biases against stigmatized racial groups will go unchecked because there
are no meaningful limits placed on private actors use of racial profiling, and the
actors may be unaware of their own subconscious biases.
465
Police are limited in
their use of racial profiling.
466
Law enforcement officers are not permitted to rely
solely on race and ethnicity in determining whether to search an individual.
467
Yet,
there are few limitations on racial profiling with respect to neighborhood watch or
other private law enforcers.
468

Burdened by (and perhaps unaware of) their own individual biases,
coupled with the lack of procedural safeguards or training, neighborhood watch
members may act on their biases and target individual suspects on the basis of race
or ethnicity.
469
Racial minority community members could be alienated by racial
profiling and aggressive volunteer policing, which are reminiscent of the
vigilantism and lynchings of Jim Crow.
470
While there are potential criminal and
civil remedies for private law enforcement abuses,
471
public law enforcement

462
Finegan, supra note 115, at 129-30 (discussing private policing and Trayvon Martins death)
(citing Patrick Jonsson, Trayvon Martin Case Reveals Confusion over how Stand Your ground
Works, CHRISTIAN SCIENCE MONITOR (Apr. 11, 2012); Floridas Stand Your Ground Law:
Investigation, TAMPA BAY TIMES, Eyder Perlata, Trayvon Martin Killing Puts Stand Your
Ground Law in Spotlight, NPR.ORG (Mar. 19, 2012)) (This incident is an extreme example of
what can happen when private citizens are engaged in law enforcement activities without the
restrictions and training of police offices.)
463
Id. at 123-24.
464
Id.
465
Id. at 124 (citing Donald Braman, Cultural Cognition and the Reasonable Person, 14 LEWIS &
CLARK L. REV. 1455, 1479 (2010); see supra Part VII , see supra note 459.
466
Finegan, supra note 115, at 124 (citing Michael R. Smith, Depoliticizing Racial Profiling:
Suggestions for the limited Use and Management of Race in Police Decision-Making, 15 GEO.
MASON U. CIV. RTS. L.J. 219, 224-46 (2005)) (While [racial profiling] certainly still occurs, the
race or ethnicity of an individual cannot, by itself, provide suspicion to stop or detain that
individual.).
467
Id.
468
Finegan, supra note 115, at 125.
469
Id., (citing Braman, supra note 465, at 1479).
470
Cf. Lawson supra note 34, at 276 (The repetitive combination of Black males being killed
under suspicious, questionable, and irreconcilable facts coupled with law enforcements inaction,
acquiescence, or even affirmative cover-up is a chronic injury that the African American
community has suffered, for decades,.)
471
Finegan, supra note 115, at 128 (citing Michael Wells, Punitive Damages for Constitutional
Torts, 56 LA. L. REV. 841, 872 (citation omitted).
159

agencies may not be motivated to pursue convictions because they profit from the
evidence obtained by these groups.
472
SYG, as discussed previously, carries with it
the notion that individuals can, and indeed, should take the law into their own
hands.
473
SYG could contribute to potential abuses, motivated by racial bias,
committed by neighborhood watch volunteers because they perceive expanded
rights and responsibilities flowing from the law.
474
Trayvon Martin arguably fell
victim to George Zimmermans racial profiling.
475
George Zimmerman apparently
found Martins appearance suspicious because of his race and his wearing of a
hooded sweatshirt.
476
Trayvon Martin died on February 26, 2012,
477
possibly
because George Zimmerman felt empowered by Floridas SYG law.

IX. CONCLUSION

Floridas SYG law has been criticized as encouraging vigilantism
478
and a
Wild West atmosphere where men shoot first and ask questions later,
479
if ever.
This freer use of deadly force in self-defense has far-reaching implications beyond
giving people the right to protect their lives and property from dangerous
intruders.
480
The freedom to kill encompasses the absurd: an apartment dweller who
unintentionally wanders into the wrong apartment can be legally killed by the
rightful apartment dweller, even in the absence of true danger.
481
The panorama of
possibilities is unlimited.
Not only does SYG arguably increase gun violence,
482
it increases racial
bias.
483
Though technically race neutral, implicit bias is fundamental to this law.
484

A civil suit is also unlikely to be an effective remedy for conduct that violates
an individuals civil rights under these circumstances. Just as a criminal
suspect is unlikely to have the resources or knowledge to file a 1983 (42
U.S.C. 1983 (1996)) action against a public officer who violates his civil
liberties, it follows that a suspect would also be unlikely to file such an action
against private individuals who encroach upon his civil liberties.
Id.
472
Finegan, supra note 115, at 127-28 (citing Roger A. Fairfax, Jr., Outsourcing Criminal
Prosecution?: The Limits of Criminal Justice Privatization, 2010 U. CHI. LEGAL F. 265, 274
(2010)).
473
See supra notes 371-373 and accompanying text; see supra Part VI.B.
474
Id. Cf. Finegan, supra note 115, at 116 (the ability of these private citizens to conduct law
enforcement activities is particularly troubling, in part, because of laws that have expanded upon
the ability of individuals to carry weapons and act in self-defense).
475
See supra Part II; see supra note 462 and accompanying text.
476
Transcript supra note 10.
477
Gutman & Tienabeso, supra note 6.
478
Lawson, supra note 34, at 272 (citing Gregg v. Georgia, 428 U.S. 153, 183 (1976); see Ross,
supra note 5 at 35.
479
David McGrath, McGrath: Stand Your Ground Laws Recall the Wild West, SOUTHTOWN
STAR, April 20, 2012, http://southtownstar.suntimes.com/opinions/guestcommentary/11991942-
474/mcgrath-stand-your-ground-laws-recall-the-wild-west.html.
480
See supra Part III.C.
481
See supra Parts III.C.3-5.
482
Cheng Cheng & Mark Hoekstra, Does Strengthening Self-Defense Law Deter Crime or Escalate
Violence? Evidence from Expansions to Castle Doctrine 5 (forthcoming in the JOURNAL OF
HUMAN RESOURCES), http://econweb.tamu.edu/mhoekstra/castle_doctrine.pdf) (we find
significant evidence that the laws lead to more homicides. Estimates indicate that the laws
increase homicides by a statistically significant 8 percent, which translates into an additional 600
homicides per year across states that expanded castle doctrine.).
160

Its genesis reveals this prejudice.
485
The NRA conceived SYG
486
and has used
questionable rhetoric and appeals to fear to advance its agenda.
487
It created an us
versus them atmosphere that relied on racial bias.
488
Unsurprisingly, the NRA
chose to launch SYG in the southern state of Florida with its troubled racial history
and social acceptance of violence.
489
Furthermore, racial minorities are regarded as
more criminal and dangerous than whites, and loosening restrictions on the use of
deadly force puts minorities at greater risk of harm.
490
Additionally, fewer
convictions for killing blacks than for killing whites reveal evidence of racial
disparity in the application of the law.
491

Even more important than what the law does is what the law says.
492
The
law implicitly says that human life is less valuable than property
493
and pride.
494
Be
a true man and kill the intruder. Do not retreat! The law is on your side. With its
implicit bias
495
and southern beginnings,
496
the law expresses that black lives are
less valuable than white lives.
497
One can only wonder what George Zimmerman
was thinking when he shot and killed Trayvon Martin and later claimed he was
standing his ground.
498

State legislators have a role to play as well. Although previously
influenced by the NRA,
499
states with SYG legislation need to reexamine their laws
and consider their repeal. These SYG laws undermine American ideals of
protecting human life
500
and promoting racial equality,
501
and nothing is more
American than those values.

483
See supra Parts V.- VII; see generally Roman, supra note 445 (discussing statistics that show
SYG laws result in more justified homicides when the victim is black).
484
See supra Parts V.-VI.
485
Id.
486
See Train, supra note 208; see Solotaroff, supra note 2; supra note 98.
487
See supra Part VI.B.

488
See supra Part VI.B; see generally Eitches, supra note 336 (discussing the NRA and its
rhetoric); see FREEDOM IN PERIL, supra note 2 (showing an example of NRA propaganda).
489
See supra Part V; see supra note 335 and accompanying text.
490
See supra Part VII.
491
See supra notes 437, 440-42 and accompanying text; see supra note 445.
492
See supra Part IV.
493
See supra Part III.C.5.
494
495
See supra Parts VI.-VII.
496
See supra Part V.
497
See supra Part V.-VIII.
498
See Gutman & Tienabeso, supra note 6.
499
See supra note 98.
500
501
See supra note 214 and accompanying text; see supra Parts VI.B., VII.
161

NO GOOD DEED GOES UNPUNISHED: AN ARGUMENT FOR WHY
KANSAS MUST REWRITE ITS ARTIFICIAL INSEMINATION STATUTE.

Houson Lafrance
1

I. Introduction
2

Imagine you see an ad on Craigslist
3
from a lesbian couple seeking a sperm
donor.
4
You and your wife mutually agree to meet with the couple, who are
desperate to conceive a child.
5
At the conclusion of that meeting, you agree to
donate your sperm in order to help them conceive a child.
6
The agreement is
reduced to a contract signed by both parties,
7
which outlines all terms and
conditions, including a provision stating that in exchange for your sperm donation
without compensation, the couple agrees to relieve you of all of your parental rights
and responsibilities if a child results from your sperm donation.
8
Then, three years
later, you receive notice that the State is suing you for back child support.
9
This
sounds like a script to a bad Hollywood movie, but not for William Marotta and not
under Kansas law.
10

Under Kansas law, an unsuspecting sperm donor can be legally recognized
as the father despite any agreement to the contrary, unless the donation was
completed with the assistance of a physician.
11
On its face, the law appears sound.
12

1
J.D. candidate at the St. Thomas University School of Law in Miami Gardens, Florida, May
2014.
2
The purpose of this hypothetical is for this comment only.
3
See CRAIGSLIST.ORG, http://www.craigslist.org/about/sites (last visited Feb. 11, 2013); see also
Jeff McDonald, The Oldest Profession Finds A New Medium: Craigslist and the Sex Industry, 15
PUB. INT. L. REP. 42, 43 (2009) (Craigslist is arguably the largest classified ad resource in the
world.); CRAIGSLIST FACTSHEET, http://www.craigslist.org/about/factsheet (last visited Feb. 11,
2013) (noting that approximately 60 million people in the United States visit Craigslist per month).
4
See Kansas Hits Up Sperm Donor for Child Support, CNN.COM (Jan. 5, 2013, 10:20 AM),
www.cnn.com/2013/01/04/us/kansas-sperm-donation/index.html; see also John Hanna, Kansas
Wants Sperm Donor to Pay Child Support, USATODAY.COM (Jan. 2, 2013, 8:39 PM),
http://www.usatoday.com/story/news/nation/2013/01/02/sperm-donor-child-support/1803725/;
Kristina Hansen, Sperm Donor Forced to Pay Child Support, AVOICEFORMEN.COM (Jan. 3, 2013),
http://www.avoiceformen.com/feminism/government-tyranny/sperm-donor-forced-to-pay-child-
support/.
5
See note 4 and accompanying text.
6
7
8
9
See Stanley Peele, Look Before You Leap, HERALDSUN.COM (Feb. 16, 2013, 10:25 AM),
http://www.heraldsun.com/chherald/chcolumnists/x3716297/Peele-Look-before-you-leap.
William Marottas first thought when he received a phone call from the Kansas Department of
Children and Family informing him that he must pay six thousand dollars in back child support as
well as future child support, was no good deed goes unpunished. Id.
10
See KAN. STAT. ANN. 23-2208(f) (1994). The statute states:
The donor of semen provided to a licensed physician for use in artificial
insemination of a woman other than the donors wife is treated in law as if he
were not the birth father of a child thereby conceived, unless agreed to in
writing by the donor and the woman.
Id.
11
Id.
162

However, the recent case of William Marotta highlights the disparity the law
generates between the reproductive decision-making rights of men and women.
13

After reading a Craigslist ad from a lesbian couple seeking a sperm donor, William
Marotta agreed to donate his sperm; free of charge, on the condition he could sign
an agreement with the couple relinquishing all parental rights.
14
Unfortunately, for
William, Kansas law does not recognize sperm donor agreements,
15
and William
was recognized as the legal father of the child that resulted from his sperm
donation.
16
As the legal father, William was ordered to pay six thousand dollars in
back child support by the Kansas Department of Children and Family, and is
responsible for future financial support of his child.
17
Kansas law is penalizing
William because a physician did not perform the artificial insemination procedure.
18

Kansas law requires that William would have had to subject himself to an
examination performed by physician in order to relinquish his parental rights.
19

This requirement discriminates against men because on one hand, the Supreme
Court recognizes a womans reproductive right to choose and emphatically states
that no one, even the government, can interfere with a womans reproductive right
to choose, but on the other hand, the right to choose does not extend to a mans
reproductive decisions.
20
This inconsistency raises constitutional concerns

12
See id.; see also How Are Donors Screened?, SPERMBANKFAQ.COM (May 30, 2010),
http://spermbankfaq.com/articles/sperm-banks/item/4-how-are-donors-screened? (noting that the
rational is that a fertility clinic can properly screen a sperm donor for potential diseases or genetic
defects).
13
See Kansas Hits Up Sperm Donor for Child Support, supra note 4; see also Kansas wants sperm
donor to pay child support, USATODAY.COM (Jan. 2, 2013, 8:39 PM),
http://www.usatoday.com/story/news/nation/2013/01/02/sperm-donor-child-support/1803725/;
Kristina Hansen, Sperm Donor Forced to Pay Child Support, AVOICEFORMEN.COM (Jan. 3, 2013),
http://www.avoiceformen.com/feminism/government-tyranny/sperm-donor-forced-to-pay-child-
support/.
14
See Kansas Hits Up Sperm Donor for Child Support, supra note 4. When William Marotta came
across a Craigslist ad, from a lesbian couple, requesting a sperm donation, he was intrigued. Id.
He decided to answer the couples ad and donate his semen free of charge, but little did he know
that he would bring to the forefront a national debate about artificial insemination and parental
rights. Id.
15
See KAN. STAT. ANN. 23-2208(f). But see FLA. STAT. ANN. 742.14 (1993) (stating that a
sperm donor relinquishes all paternal rights and obligations with respect to the resulting child).
Had William and the lesbian couple gone through a fertility clinic, Williams parental rights would
have been terminated unless he contractual agreed to retain his parental rights. KAN. STAT. ANN.
23-2208(f). If the contract William signed with the couple was to retain his parental rights Kansas
would have recognized his parental rights, but since he signed an agreement to terminate his
obligations Kansas refuses to acknowledge the contract. Id. However, in Florida William Marotta
and the couple would not need to go to a doctor for the procedure in order for William to relinquish
his parental rights. FLA. STAT. ANN. 742.14. In fact, according to Florida law he would not even
need to sign an agreement stipulating he relinquish all rights and obligations. Id.
16
See Elizabeth Chuck, Hey, Sperm Donor, Dont Answer That Craigslist Ad!, U.S. NEWS (Jan.
24, 2013), http://usnews.nbcnews.com/_news/2013/01/03/16326826-hey-sperm-donor-dont-
answer-that-craigslist-ad?lite.
17
See Chuck, supra note 16.
18
Id.
19
See KAN. STAT. ANN. 23-2208(f). On its face, the Kansas Statute does not recognize the
relinquishment of parental rights unless a doctor does the artificial insemination procedure. Id.
20
See Melanie G. McCulley, The Male Abortion: The Putative Fathers Right to Terminate His
Interests in and Obligations to the Unborn Child, 7 J.L. & POLY 1, 4 (1998). Noting that, unlike
women, fathers do not have the luxury of deciding that they are not ready for fatherhood. Id. The
163

implicating the Fourteenth Amendments Due Process Clause since men do not
have the same rights as women with respect to reproductive decision-making.
21
The
Due Process Clause is applicable through the Equal Protection Clause,
22
which
states, [n]o State can deny an individual equal protection of the law.
23
These
protections include the fundamental right to privacy,
24
which extends to
reproductive decision-making.
25
The requirement of a physician to oversee the
sperm donation, therefore, poses two distinct problems: (1) the statute compels a
man to be a father against his will if the insemination is not performed by a
physician, which is inconsistent with the laws treatment of womens reproductive
decision-making; and (2) the statute discriminates against economically

author specifically noted that a fathers responsibilities begin at conception and can only be
terminated if the female has an abortion or agrees to give the child up for adoption. Id.
21
See id at 45; see also U.S. CONST. amend. XIV, 1 ([N]or shall any State deprive any person
of life, liberty, or property, without due process of law . . . .); see also Lawrence v. Texas, 539
U.S. 558, 578 (2003) (finding that a homosexual couple has the right to liberty under the Due
Process Clause which gives them the right to privacy free from government intervention);
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 63940 (1974) (This Court has long recognized
that freedom of personal choice in matters of marriage and family life is one of the liberties
protected by the Due Process Clause of the Fourteenth Amendment.); Eisenstadt v. Baird, 405
U.S. 438, 453 (1972) (If the right of privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child.); Loving v.
Virginia, 388 U.S. 1, 12 (1967) (finding that the statute in question violated the Due Process
Clause because [t]he freedom to marry has long been recognized as one of the vital personal
rights essential to the orderly pursuit of happiness by free men.).
22
U.S. CONST. amend. XIV, 2. The Fourteenth Amendment states:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
Id.
23
See id. (No State shall . . . deny to any person within its jurisdiction the equal protection of the
laws.); see also City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (The Equal
Protection Clause of the Fourteenth Amendment commands that no State shall deny to any person
within its jurisdiction the equal protection of the laws, which is essentially a direction that all
persons similarly situated should be treated alike.). But see Nordlinger v. Hahn, 505 U.S. 1, 10
(1992) (The Equal Protection Clause does not forbid classifications. It simply keeps
governmental decisionmakers from treating differently persons who are in all relevant respects
alike.).
24
See Terry v. Ohio, 392 U.S. 1, 9 (1968) (No right is held more sacred, or is more carefully
guarded by the common law, than the right of every individual to the possession and control of his
own person, free from all restraint or interference of others, unless by clear and unquestionable
authority of law.); see also Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J.,
dissenting). Justice Brandeis in his dissent found that the founders of the Constitution recognized
that a citizen had the right to be left alone and free of the Governments interference. Olmstead,
277 U.S. at 478. Justice Brandeis further stated that the Fourth and Fifth of Amendments of the
Constitution implicitly protect this right. Id.
25
See Carey v. Population Services, Intl, 431 U.S. 678, 684 (1977) (finding that the right to
privacy is a fundamental right that includes marriage, procreation, and child rearing); see also
McCulley, supra note 20, at 44 (quoting Eisenstadt, 405 U.S. at 453) (This right to privacy,
which is recognized as a fundamental right, is the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so fundamentally affecting a person as
the decision whether to bear or beget a child.).
164

disadvantaged women and couples who cannot afford the expense of using a
fertility clinic to conceive a child as a byproduct of the statutes physician
requirement.
26

This comment examines the discriminatory disparity in parental rights that
exist between men and women, and how the Kansas statute on artificial
insemination discriminates against economically challenged women and couples
who cannot conceive.
27
Part II offers a brief history of artificial insemination.
28

Part III discusses the history of a womans right to choose, and the lengths the law
has gone to protect this right.
29
Part IV discusses how men do not receive the same
treatment as women with respect to reproductive decision-making.
30
Part V revisits
the Kansas statute, analyzing the legality of the statute under the Equal Protection
and Due Process Clauses, focusing on its discrete discriminatory effects, and
arguing that it does not pass strict scrutiny.
31
Finally, Part VI proposes a model
statute that would alleviate the legal concerns regarding artificial insemination and
applies the proposed statute to William Marottas situation.
32

II. A Brief History of Artificial Insemination

Artificial insemination is defined as the purposeful introduction of semen
into a females reproductive tract by means other than sexual intercourse.
33
The
man that provides the semen for the insemination is called the sperm donor.
34
There
are three types of artificial insemination: (1) homologous artificial insemination
(AIH), which involves a husband and wife; (2) heterologous artificial
insemination (AID), which involves a sperm donor and a woman who is not his
wife; (3) artificial insemination, mixed (AIM), which involves the mixing of the
husbands infertile semen with the semen of the sperm donor to inseminate the
husbands wife.
35
Artificial insemination has allegedly existed since the year 1322,

26
See discussion infra Part V.
27
See KAN. STAT. ANN. 23-2208(f) (1998); see also Ann Bindu Thomas, Avoiding Embryos "R"
Us: Toward A Regulated Fertility Industry, 27 WASH. U. J.L. & POLY 247, 250 (2008) (stating
that purchasing an embryo is much less expensive than undergoing artificial insemination); Ellen
Waldman, Cultural Priorities Revealed: The Development and Regulation of Assisted
Reproduction in the United States and Israel, 16 HEALTH MATRIX 65, 88 (2006) (noting that most
employers exclude artificial insemination from their healthcare plans while providing for less
expensive alternatives). By requiring that a physician perform artificial insemination, Kansas (and
States with similar statutes) forces poor women to spend money at a fertility clinic to get pregnant.
KAN. STAT. ANN. 23-2208(f). Likewise, a sterile man who desires to have children with his wife
must also visit a fertility clinic and pay to get his wife pregnant. Thomas, supra at 250.
28
See discussion infra Part II.
29
See discussion infra Part III.
30
See discussion infra Part IV.
31
See discussion infra Part V.
32
See discussion infra Part VI.
33
See In re Baby Doe, 291 S.C. 389, 391 (1987) (Artificial insemination is the introduction of
semen into the reproductive tract of a female by artificial means. . . .); see also Insemination
Definition, M-W.COM, http://www.merriam-webster.com/dictionary/artificial%20insemination
(last visited Jan. 17, 2013).
34
See In re Baby Doe, 291 S.C. at 391.
35
See Brent J. Jensen, Artificial Insemination and the Law, 1982 BYU L. REV. 935, 936 (1982).
165

when Arab horsemen used it to weaken the horses of their enemies,
36
and is the one
of the oldest methods of alternative reproduction in human history.
37
The first
reported insemination of a human being in the United States occurred in 1866.
38
By
twentieth century, artificial insemination became a common occurrence America.
39

In response, several states adopted the Uniform Parentage Act (UPA),
40

which stipulates, among other things, that a physician must over see the artificial
insemination procedure for men to relinquish their parental rights.
41
Because the
UPA of 1973 did not address the parental rights of children born by alternative
reproduction, such as artificial insemination, the National Conference of
Commissioners on Uniform State Laws eventually promulgated the UPA of 2000,
which recognized the technological advances society had made in the field of
alternative reproduction.
42
Since that time, artificial insemination has become a
viable method of reproduction for single women, couples who cannot conceive, and
especially for same-sex female couples.
43

36
See WILFRED J. FINEGOLD, ARTIFICIAL INSEMINATION 5 (1964). The horsemen would attempt
to introduce the semen of inferior stallions to the mares of their enemies with the intent to weaken
the breeding strain. Id.
37
Id.
38
See Jensen, supra note 35, at 938.
39
See Stacey Sutton, The Real Sexual Revolution: Posthumously Conceived Children, 73 ST.
JOHN'S L. REV. 857, 862 (1999) (This simple process [artificial insemination] . . . evolved over
hundreds of years, becoming widespread in the 1960s.).
40
See Lauren Andrew Hudgeons, Gestational Agreements in Texas: A Brave New Word, 57
BAYLOR L. REV. 863, 86768 (2005) (noting that the National Conference of Commissioners on
Uniform State Laws created the Uniform Parentage Act in 1973 to give equal treatment and
uniformity for children born out of wedlock); see also Uniform Parentage Act Law and Legal
Definition, USLEGAL, http://definitions.uslegal.com/u/uniform-parentage-act/ (last visited Jan. 13,
2013) (providing a description and definition of the 1973 Uniform Parentage Act).
41
See, e.g., KAN. STAT. ANN. 23-2208(f) (1994) (The donor of semen provided to a licensed
physician for use in artificial insemination of a woman other than the donor's wife is treated in law
as if he were not the birth father of a child thereby conceived . . . .); MINN. STAT. ANN. 257.56
(1987) (The donor of semen provided to a licensed physician for use in artificial insemination of a
married woman other than the donor's wife is treated in law as if he were not the biological father
of a child thereby conceived.); MONT. CODE ANN. 40-6-106(2)(1995) (The donor of semen
provided to a licensed physician for use in artificial insemination of a married woman other than
the donor's wife is treated in law as if the donor is not the natural father of a child conceived by
artificial insemination.). But cf. FLA. STAT. ANN. 742.14 (1993) (stating that a sperm donor
relinquishes paternal rights and obligations to all children that result from the donation, but makes
no mention of a doctor); IDAHO CODE ANN. 39-5405(1) (1982) (The donor shall have no right,
obligation or interest with respect to a child born as a result of the artificial insemination.).
42
See Hudgeons, supra note 40, at 86768.
43
See also CHARLES P. KINDREGAN, JR. & MAUREEN MCBRIEN, ASSISTED REPRODUCTIVE
TECHNOLOGY: A LAWYERS GUIDE TO EMERGING LAW AND SCIENCE (2d ed. 2012); Katharine
Swan, The Artificial Insemination Guide: How to Buy and Use Sperm, THE RAINBOW BABIES (Jan.
12, 2013), http://www.therainbowbabies.com/InseminationGuide.html.
166

III. A Womans Right to Choose

A. The Supreme Court Establishes a Womans Right to Not Be a Mother

The uncontested reproductive rights of women, in todays society, find its
roots in the landmark case of Roe v. Wade.
44
In Roe,
45
the Court addressed the
constitutionally of a Texas Statute
46
that criminalized abortions, except when an
abortion is recommended by a doctor.
47
Justice Blackmun, speaking for the
majority, began the Courts analysis of abortion by detailing the history of abortion
and finding that women had always enjoyed the right to choose until society began
to disapprove of the practice.
48
Justice Blackmun further detailed the medical
developments that allowed for safe abortions.
49
Critical to the Courts holding was
the effect that an unwanted pregnancy and resulting child would have on a woman,
stating that:
[m]aternity, or additional offspring, may force upon the woman a
distressful life and future. Psychological harm may be imminent.
Mental and physical health may be taxed by child care. There is
also the distress, for all concerned, associated with the unwanted
child, and there is the problem of bringing a child into a family
already unable, psychologically and otherwise, to care for it. In
other cases, as in this one, the additional difficulties and
continuing stigma of unwed motherhood may be involved. All
these are factors the woman and her responsible physician
necessarily will consider in consultation.
50

After an extensive analysis detailing the justifications for why states have abortion
laws, the Supreme Court held that the Due Process Clause of the Fourteenth
Amendment affords women the fundamental right to privacy in making their own

44
Roe v. Wade, 410 U.S. 113, 154 (1973); see John A. Robertson, Gestational Burdens and Fetal
Status: Justifying Roe v. Wade, AM. J.L. & MED. 189, 189 (1988) (noting that Roe v. Wade was a
landmark case for women and for reproductive rights); see also Erin Daly, Reconsidering Abortion
Law: Liberty, Equality, and the New Rhetoric of Planned Parenthood v. Casey, 45 AM. U. L. REV.
77, 83 (1995). This author notes that cases subsequent to Roe v. Wade amplified the themes
introduced in what author acknowledges was a landmark decision. Robertson, supra at 189.
45
Roe, 410 U.S. at 113. Jane Roe was a pregnant, single woman who brought a class action suit
challenging the constitutionality of Texass abortion laws. Id. These laws made it a crime to
attempt to or to obtain an abortion except when recommended by a doctor to save the mothers life.
Id. The other plaintiff involved was a doctor, who faced criminal prosecution for violating the
Texas abortion law, and a married couple, who sought an injunction against the enforcement of the
Texas abortion law because it was unconstitutional. Id.
46
Id. at 118 n.1 (quoting TEX. CODE 1196 (1961) (Nothing in this chapter applies to an
abortion procured or attempted by medical advice for the purpose of saving the life of the
mother.).
47
Id. at 118.
48
Id. at 139 (stating that gradually the degree of the offense and penalties increased, so that by the
end of the 1950s, a majority of the country had banned abortions except when it was done to save
the mothers life).
49
Id. at 149.
50
Roe, 410 U.S. at 153; see also Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476
U.S. 747, 772 (1986) (Few decisions are more personal and intimate, more properly private, or
more basic to individual dignity and autonomy, than a woman's decisionwith the guidance of her
physician and within the limits specified in Roe whether to end her pregnancy.).
167

reproductive decisions.
51
Specifically, Roe stands for the principle that the
government cannot compel a woman to be a mother against her will.
52

Since the Roe decision, the Supreme Court has addressed various attempts
by state legislatures to restrict a womans right to choose.
53
While each of these
cases continue to uphold a womans right to chose, only one, Planned Parenthood of
Southeastern Pennsylvania v. Casey,
54
put this reproductive right in question. By
the 1990s, the composition of the Supreme Court had changed
55
and the belief was
that the Court was poised to overrule Roe v. Wade.
56
Yet in a surprising five to four
vote, the Court in Planned Parenthood,
57
relying mostly on the doctrine of stare
decisis, reaffirmed the holding of Roe that the government could not compel a
woman to be a mother.
58
The Court, in a joint opinion, reaffirmed Justice
Blackmuns analysis
59
by detailing the effects that an unwanted pregnancy would
have on a woman, that the suffering was intimate and personal, and that a woman
alone must shape her role in society.
60
Thus, it appears axiomatic from the Courts
decisions that neither the government nor the alleged father of the child may
interfere with a womans right to be or not be a mother.
61

51
Id. at 164 (holding that the Texas statute violated the Due Process Clause of the Fourteenth
Amendment).
52
Id. at 163.
53
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 897 (1992) (finding spousal notification
to be unconstitutional); Bellotti v. Baird, 443 U.S. 622, 651 (1979) (holding that a provision that
required unmarried minors to obtain consent of both parents or the authorization of a state judge if
parental consent was denied unconstitutional); Colautti v. Franklin, 439 U.S. 379, 39798 (1979)
(ruling a state law that required a doctor to make a determination, before performing an abortion,
based on his experience, judgment, and competence to be unconstitutional); Doe v. Bolton, 410
U.S. 179, 194 (1973) (declaring a Georgia law that attempted to restrict abortion to situations
where it would save the mothers life, to prevent a fetus from being born with a serious defect, or
to end a pregnancy resulting from rape unconstitutional).
54
See Planned Parenthood, 505 U.S. at 833. This case dealt with the Pennsylvania abortion
control law, which the Pennsylvania legislature had amended. Id. Among the new provisions, the
law required informed consent and a 24-hour waiting period prior to the procedure. Id. In
addition, a minor seeking an abortion now required the consent of one parent, and a married
woman seeking an abortion had to notify her husband of her intention to abort the fetus. Id.
Several abortion clinics and physicians challenged these provisions. Id.
55
See Earl M. Maltz, Abortion, Precedent, and the Constitution: A Comment on Planned
Parenthood of Southeastern Pennsylvania v. Casey, 68 NOTRE DAME L. REV. 11, 18 (1993) (noting
that the two of the strongest supporters of Roe decision had been replaced by David Souter and
Clarence Thomas).
56
Id. (Casey created great excitement among both pro-choice and pro-life groups.).
57
Planned Parenthood, 505 U.S. at 833.
58
See id. at 846. The Court found that the essential holding of Roe v. Wade should be retained. Id.
59
60
See Planned Parenthood, 505 U.S. at 852. The Court stated:
[T]he liberty of the woman is at stake in a sense unique to the human
condition and so unique to the law. The mother who carries a child to full
term is subject to anxieties, to physical constraints, to pain that only she must
bear. . . Her suffering is too intimate and personal for the State to insist,
without more, upon its own vision of the woman's role. . . The destiny of the
woman must be shaped to a large extent on her own conception of her
spiritual imperatives and her place in society. Id.
61
Id. at 833; Bellotti v. Baird, 443 U.S. 622, 651 (1979); Colautti v. Franklin, 439 U.S. 379, 397
98 (1979); Doe v. Bolton, 410 U.S. 179, 194 (1973).
168

B. The Safe Haven Act Allows Women to Choose to not be a Mother

Consistent with the ideas embodied in Roe and subsequent decisions, the
law recognizes that mothers of newborns have the right to unilaterally relinquish
their parental rights under the Safe Haven Act.
62
The Safe Haven Act is a law that
allows new mothers to terminate their parental rights by leaving their newborn child
at a hospital, church, or fire station
63
within seventy-two hours of the childs
birth.
64
Texas
65
became the first state to adopt a version of the Safe Haven Act in
response to increasing media attention about abandoned newborns.
66
After Texas,
several states adopted some form of the Safe Haven Act.
67
The policy behind this
law is allows parents
68
to anonymously terminate their parental rights without fear
of prosecution.
69
Although the law applies to both parents, the mother is usually the
one who benefits from this Act.
70

C. A Parent May Not Interfere with Their Childs Reproductive Rights

In addition to the Safe Haven Act, the law does not allow a parent to
interfere with their childs decision to be a parent.
71
The case of In re Smith further
highlights the importance of a womans right to choose.
72
The mother in Smith

62
See CAL. HEALTH & SAFETY CODE 1255.7 (2005); FLA. STAT. ANN. 63.0423 (2012); TEX.
FAM. CODE ANN. 262.301 (2001).
63
See Shannon Farley, Neonaticide: When the Bough Breaks and the Cradle Falls, 52 BUFF. L.
REV. 597, 622 (2004).
64
See CAL. HEALTH & SAFETY CODE 1255.7; FLA. STAT. ANN. 383.50; TEX. FAM. CODE.
ANN. 262.301.
65
See TEX. FAM. CODE ANN. 262.302(a) (2001); see also Tanya Amber Gee, South Carolina's
Safe Haven for Abandoned Infants Act: A Band-Aid Remedy for the Baby-Dumping Epidemic, 53
S.C. L. REV. 151, 15354 (2001-2002) (noting that Texas enacted the Safe Haven Act after thirteen
incidents of child abandonment). Texass version of the safe haven act states:
A designated emergency infant care provider shall without a court order, take
possession of a child who appears to be 60 days old or younger if the child is
voluntarily delivered to the provider by the childs parent and the parent did
not express an intent to return for the child. 262.302(a).
66
See Gee, supra note 65, at 15253 (noting that in 1991 the media covered sixty-five baby
abandonments, with eight resulting in the babys death).
67
See ARIZ. REV. STAT. ANN. 13-3623.01 (2009); N.H. REV. STAT. ANN. 132-A:2 (2013); N.J.
STAT. ANN. 30:4C-15.7 (2000); S.C. CODE ANN. 63-7-40 (2008).
68
See generally Baby Abandonment Fact Sheet Frequently Asked Question, CHILD WELFARE
LEAGUE OF AMERICA, http://www.cwla.org/programs/baby/faq.htm (Last visited Jan. 14, 2013)
(explaining that the media attention focuses mostly on the mothers because there is no concrete
evidence about fathers in these situations).
69
See Gee, supra note 65, at 151.
70
See Dayna R. Cooper, Fathers Are Parents Too: Challenging Safe Haven Laws with Procedural
Due Process, 31 HOFSTRA L. REV. 877, 878 (2003) (arguing that the ultimate goal of these laws is
to protect babies by persuading mothers to leave them in safe places so they can receive any
medical care that is needed and, ultimately, be placed with an adoptive family). But see Associated
Press, Father Drops Off 9 kids Under Safe Haven Law, KOMONEWS.COM (Sept. 25, 2008, 1:48
A.M), http://www.komonews.com/news/national/29743474.html (showing that men do
occasionally use the Safe Haven Act).
71
See In re Smith, 16 Md. App. 209, 226 (1972) (The short of it is that the Juvenile Court did not
have the power to compel Cindy to resort to medical procedures relative to a termination of her
pregnancy on the ground that her mother wanted her to have an abortion.).
72
See id. (holding that it is unconstitutional for a mother to force her daughter get an abortion).
169

wanted her daughter to have an abortion after discovering her daughters
pregnancy.
73
The court considered whether a parent had the right to force their
child to have an abortion, and relying on legislative intent coupled with a plain
reading of the statute, the court found that a parent could not compel their child to
have an abortion.
74
Essentially, the courts holding stands for the principle that even
parents cannot limit or interfere with a womans right to choose, even if she is still
legally a minor.
75
Thus, in light of these cases, statutes, and the policies that
underlie them, it is easy to see that the law affords a woman the unquestioned right
to choose whether she wants to be a mother.
76

IV. The Right to Choose To Does Not Extend To Men

As described above, the Court has gone out of its way to declare that no
person or governmental entity can interfere with a womans right to choose.
77

Despite the Courts reliance on the right to privacy being the hook for a womans
right to choose, the law does not recognize a mans right to choose to be a father
because the mother, with assistance from the government, can compel him to be a
father against his will.
78
When a man and woman engage in sexual intercourse, and
the woman becomes pregnant, two distinct rights emerge; one that law affords the
woman the freedom of choice, and another that leaves the prospective father at the
mercy of the mother.
79
The law further stipulates that the potential father may not
compel a woman to be a mother against her will.
80
Yet, the law does not afford the
same freedom of choice to men.
81

73
Id. at 214 (I would like for her to have an abortion.). The mothers reasons for wanting her
daughter to have an abortion rested upon the fact that she felt her daughter was not mature enough
to have a child. Id.
74
Id. at 22324.
75
See id. The courts decision raises an interesting dilemma because if the minor is still dependent
on her parents for support, the court is essentially passing the burden of raising and providing for a
child to the parents. Id. Socially, parents of minors should take care of their children and
grandchildren, but to impose on a parent legally the burden of raising another child against their
will is perplexing. Id.
76
Compare Roe v. Wade, 410 U.S. 113, 163 (1973) (essentially stating that a woman has the right
to choose), and Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992) (reaffirming
Roes holding), with N.H. REV. STAT. ANN. 132-A:2 (2013) (allowing a woman to give up her
parental rights within a certain timeframe), and TEX. FAM. CODE ANN. 262.302(a) (2001)
(allowing a woman to relinquish her parental rights).
77
See discussion supra Part III.
78
See Roe, 410 U.S. at 153. The Court stated:
This right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, as we feel it is,
or, as the District Court determined, in the Ninth Amendment's reservation of
rights to the people, is broad enough to encompass a womans decision
whether or not to terminate her pregnancy. Id.
79
See id. at 163 (holding that a woman has a choice before the end of the first trimester to
terminate pregnancy). See generally McCulley, supra note 20 (explaining that women have
choices with regard to parenthood because they can keep the child, give the child up for adoption,
or terminate the pregnancy by abortion).
80
See Roe, 410 U.S. at 113; Doe v. Bolton, 410 U.S. 179, 189 (1973). Roe establishes that a man
has no say in a womans choice to be a mother. Roe, 410 U.S. at 113. At the same time, Bolton
establishes the same principle. Bolton, 410 U.S. at 189.
81
See Roe, 410 U.S. at 113; Bolton, 410 U.S. at 189. Roe and Bolton establish that a man has no
say in a womans choice to be a mother. Roe, 410 U.S. at 113; Bolton, 410 U.S. at 189.
170

For instance, Jones v. Smith
82
presents a situation that illustrates the
disparity of parental choice. The plaintiff in Jones, a man claiming to be the father,
sought an action to prevent the pregnant mother, of his alleged child, from obtaining
an abortion by seeking a court ordered injunction.
83
The court rejected the
plaintiffs claim, citing that he lacked standing because the choice to have an
abortion was solely in the purview of the mother.
84
This decision shows that a man
who is desperate to be a father cannot compel a woman to be a mother.
85
In
addition, a fathers consent is not required for a woman to terminate her
pregnancy.
86

For example, the question presented in Rothenverger v. Doe was whether
a natural father's consent is required for the decision of a mother to abort a fetus
during the first trimester of pregnancy.
87
The plaintiff, in that case, demanded that
the mother allow the pregnancy to continue to its natural term, culminating with the
birth of a child.
88
The plaintiffs first argument was that the fetus had a right to life,
however the court dismissed this argument by finding that a fetus does not have a
legally recognized right to life.
89
Further, the court rejected the plaintiffs argument
that his consent places a condition precedent on the mothers right to terminate her
pregnancy.
90
Ultimately, the court held that the natural father could not compel the
mother to suffer an unwanted pregnancy.
91
Once more, the court continues to
illustrate that fathers have no say in a mothers reproductive decision-making.
92

Now consider what would happen if the roles were reversed, the man
would be compelled to be a father, at least financially in the form of child support,
93

even if he desires is to have to no contact with the child.
94
If the man does not
fulfill his obligations, the government can garnish his wages,
95
revoke his licenses,
96

82
Jones v. Smith, 278 So. 2d 339, 340 (Fla. Dist. Ct. App. 1973).
83
Id.
84
Id. ([T]he decision to terminate a pregnancy is a personal decision to be made by the mother . .
. .).
85
Id.
86
See Rothenberger v. Doe, 149 N.J. Super. 478, 479 (Ch. Div. 1977).
87
Id.
88
Id.
89
Id. (citing Roe v. Wade, U.S. 113, 162 (1973)) ([T]he unborn have never been recognized in
the law as persons in the whole sense).
90
Id. at 180. ([H]er right is [n]ot conditioned upon consent of the husband or natural father.).
91
Rothenberger, 149 N.J. Super at 481 ([T]he natural father has . . . less equity in compelling the
mother to suffer an unwanted pregnancy.).
92
Id.; Jones v. Smith, 278 So. 2d 339, 340 (Fla. Dist. Ct. App. 1973).
93
See Child Support Enforcement Act, Pub. L. No. 93-647 (1975) (codified as Title IV-D of the
Social Security Act, 42 U.S.C. 651669b (1975)). This act imposes mandates that, among other
things, require mothers to name the biological father in order to receive child support and to
cooperate in seeking child support from the father. Id.
94
See 42 U.S.C. 651 (1975). (Establishing a governmental agency that will allow custodial
parents to enforce support obligations owed by the noncustodial parent.)
95
See e.g., FLA. STAT. ANN. 61.12(1) (1984); KAN. STAT. ANN. 60-2310(e)(1) (1997); N.C.
GEN. STAT. ANN. 110-136(a) (1999); TEX. CONST. ART. XVI, 28 (1999).
96
See, e.g., ALA. CODE 30-3-172(a) (1997); COLO. REV. STAT. ANN. 26-13-126(1) (2004); N.J.
STAT. ANN. 2A:17-56.43 (1998); OHIO REV. CODE ANN. 3123.55(A)(1) (2012); OKLA. STAT.
TIT. 43, 139.1(B)(1) (2009); S.D. CODIFIED LAWS 32-12-116 (2003); see also State, Dept. of
Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725, 726 (Alaska 1998) (suspending
fathers license because he did not pay child support); In re M.E.G., 13-01-117-CV, 2002 WL
407802 (Tex. App. Mar. 14, 2002) (noting a father appeals of his license being suspended for
failing to pay child support).
171

or punish the unwilling father by sending him to jail.
97
In Roe and Casey, the
Supreme Court carefully detailed the hardships a woman would face if she had a
child,
98
yet it is dispositive that the same concerns are equally applicable to men.
99

A father cannot demand that his consent be given for procedures,
100
he cannot seek
an injunction,
101
and he cannot demand he be informed.
102
In the face of this
disparity, it is exacerbated in cases of artificial insemination where some of the
courts decisions border on the line of absurd.
103

A. How the Courts have dealt with Artificial Insemination

The courts, and in some respects the law, have not always treated
insemination cases in favor of the man.
104
The case of Phillips v. Irons
105
deals with
perhaps the strangest set of circumstances because the court found against the
plaintiff despite compelling evidence of fraud and deception. The plaintiff and the
defendant began dating and a short while later became engaged to be married.
106

The plaintiff and the defendant discussed the possibility of children but only if they
were married, and the plaintiff told that defendant he intended to use a contraceptive
every time they engaged in sexual intercourse.
107
Things became strange when the
defendant, as the plaintiff alleges, intentionally engaged in oral sex with [the
plaintiff] so that she could harvest [his] semen and artificially inseminate herself,
and did artificially inseminate herself.
108
The defendant filed a petition to
establish paternity and other relief, and the plaintiff filed a unique action against the
defendant claiming intentional infliction of emotional distress, fraudulent
misrepresentation, and conversion.
109
The court eventually affirmed counts II and

97
See ARIZ. REV. STAT. ANN. 25-511(A) (1999); see also Wagley v. Evans, 971 A.2d 205, 208
(D.C. 2009) (holding Wagley in contempt and ordering him to be imprisoned until he paid child
support); State v. Engelhaupt, 210 Neb. 182 (1981) (noting that the defendant was charged with
criminal failure to pay child support under the Nebraska state statute).
98
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992); Roe v. Wade, U.S. 113, 153
(1973).
99
See discussion supra Part IV.
100
See Rothenberger v. Doe, 149 N.J. Super. 478, 479 (Ch. Div. 1977).
101
See Jones v. Smith, 278 So. 2d 339, 340 (Fla. Dist. Ct. App. 1973).
102
Roe, 410 U.S. at 113; Bolton, 410 U.S. at 179; Jones, 278 So. 2d at 340.
103
104
See Phillips v. Irons, 1-03-2992, 2005 WL 4694579 (Ill. App. Ct. Feb. 22, 2005); Ferguson v.
McKiernan, 596 Pa. 78, 98 (2007); Sharpe v. Cnty. of Dauphin, 4:09-CV-989, 2010 WL 3529283
(M.D. Pa. Sept. 7, 2010); In re H.C.S., 219 S.W.3d 33, 34 (Tex. App. 2006). But see In re
Sullivan, 157 S.W.3d 911, 922 (Tex. App. 2005). In re Sullivan is one of the few cases where a
sperm donor was able to get some form of judicial relief. In re Sullivan, 157 S.W.3d at 922. In
that case, the sperm donor contracted with the mother to conceive a child where he would be
involved in the childs life. Id. However, after a disagreement, the sperm donor filed an action to
be recognized as the childs father. Id. The issue was whether the sperm donor had standing to
sue. Id. The Texas Court of Appeals eventually found in favor of the sperm donor noting that he
had standing to bring an action. Id.
105
Phillips, 2005 WL 4694579, at 1.
106
Id. The defendant did not tell the plaintiff she was still married to at the time of their
relationship. Id.
107
Id. The defendant understood the plaintiffs concerns and agreed. Id.
108
Id.
109
See id.
172

III, but reversed and remanded count I.
110
The court forced the plaintiff to pay child
support for a child he did not want or intend to create.
111

Likewise, in the case of Laura WW. v. Peter WW.
112
the court ordered the
defendant to pay child support for a child he did not want.
113
However, unlike the
defendant in Irons the child in this case does not share the same genetic material as
the defendant in this case.
114
The parties divorced and agreed that the defendant
would only pay child support for the two children that were biologically his, but not
for the third child conceived through artificial insemination.
115
The New York
Supreme Court found that the provision in the separation agreement absolving the
husband of his obligation for the child void as against public policy.
116
A
subsequent hearing would adjudicate the defendant as the father, and he appealed.
117

On appeal, the court affirmed the lower courts ruling
118
despite the defendant never
giving written consent to be recognized as the childs father.
119
The court ignored
the statute that required a husbands written consent
120
before he could be
recognized as the childs legal father.
121
Specifically, the statute in question states:
Any child born to a married woman by means of artificial
insemination performed by persons duly authorized to practice
medicine and with the consent in writing of the woman and her
husband, shall be deemed the legitimate, natural child of the
husband and his wife for all purposes... The aforesaid written
consent shall be executed and acknowledged by both the husband
and wife and the physician who performs the technique shall
certify that he [or she] had rendered the service.
122

The court initially concluded that a plain reading of the statute, if applied, would not
establish the defendant as the childs father.
123
However, the court chose to ignore

110
Id. at 6. But see Welzenbach v. Powers, 139 N.H. 688, 690 (1995). The Court in Phillips felt
that all the elements were present to establish count I and decided to remand it back to the lower
court. Phillips, 2005 WL 4694579, at 6. Yet, the Court in Welzenbach, despite finding all the
elements present for intentional infliction of emotional distress, found against Welzenbach citing
public policy. Welzenbach, 139 N.H. at 690.
111
See Sarah Berent, Man Receives Oral Sex, Ordered to Pay Child Support,
MENSNEWSDAILY.COM (Feb. 27, 2011), http://mensnewsdaily.com/2011/02/27/man-receives-
oral-sex-ordered-to-pay-child-support/; see also Jonathan Turley, Illinois Court Rules Man Can
Sue Over Deceptive Use of Sperm By Girlfriend To Impregnate Herself, JONATHANTURLEY.ORG
(Feb. 1, 2011), http://jonathanturley.org/2011/02/01/illinois-court-rules-man-can-sue-over-
deceptive-use-of-sperm-by-girlfriend-to-impregnate-herself/.
112
Laura WW. v. Peter WW., 856 N.Y.S.2d 258, 258 (2008).
113
Laura WW., 856 N.Y.S.2d at 260 (affirming the lower courts ruling that the defendant should
pay child support for the child in question).
114
Id. (noting that the plaintiff got pregnant through artificial insemination by a third party donor).
115
id. The parties would reaffirm this agreement in their divorce settlement. Id.
116
Id.
117
Id.
118
Id. at 264.
119
Laura WW., 856 N.Y. S.2d at 263.
120
See N.Y. DOM. REL. LAW 73 (1998).
121
Laura WW., 856 N.Y.S.2d at 261.
122
Id. (emphasis added) (quoting N.Y. DOM. REL. LAW 73).
123
Laura WW., 856 N.Y.S.2d at 261. The court stated:
Given the clear and specific language making written consent a prerequisite
to invoking the statute's protections, we cannot find that the statute applies
where, as here, it is conceded that the husband did not consent in writing to
the procedure. . . Under these circumstances, we conclude that Domestic
173

the statute intended to govern artificial insemination, in favor of public policy.
124

The court stated that it would follow the lead of other jurisdictions and public policy
protects children conceived through artificial insemination by shifting the burden
to the husband to rebut the presumption [of fatherhood] by clear and convincing
evidence.
125
Perplexingthe courts decisions in Laura and Irons illustrate what
Thomas Jefferson, one of Americas founding fathers, felt would make the
Judiciary a despotic branch,
126
because a judge could render an otherwise
constitutional law invalid; despite the law appearing to be a proper exercise of
legislative power. Clearly, the court will find whatever it can to hang its proverbial
hat in order to compel a man to be a father financially, through child support, even
when the father did not consent or even share the same genetic material as the
child.
127

Contrary to Laura, and Irons when a sperm donor seeks recognition as the
childs father the court still finds a way to rule against him.
128
In McIntyre v.
Crouch,
129
the sperm donor brought a filiation action
130
against the woman that used
his semen to get pregnant. In his complaint, the sperm donor alleged that he and the
mother had an agreement that he would be involved in the childs life.
131
Moreover,
he argued that Oregons artificial insemination statute does not apply to him
because the statute
132
deprives him of parental rights, it violates . . . the Oregon
Constitution, the Due Process and Equal Protection Clauses of the Fourteenth

Relations Law 73 does not establish the husband's relationship to the child.
Id.
124
Id. at 262 (stating that New York has a strong policy in favor of legitimacy and for that reason,
the court chose to ignore the intent of the legislature).
125
Id. at 263. But see In re Marriage of Witbeck-Wildhagen, 281 Ill. App. 3d 502, 507 (1996)
(finding that the mother has the burden of proving that the man consented to the insemination);
Jackson v. Jackson, 137 Ohio App. 3d 782, 795 (2000) (finding that the wife has the burden of
proof regarding consent).
126
KERMIT L. HALL & JOHN L. PATRICK, THE PURSUIT OF JUSTICE: SUPREME COURT DECISIONS
THAT SHAPED AMERICA 24 (2006) (But the opinion which gives to judges the right to decide
what laws are constitutional and what not, not only for themselves in their own sphere of action but
for the [Congress] and [President] . . . would make the Judiciary a despotic branch.). Thomas
Jefferson shared his concern about the judiciary in his letter to Abigail Adams. Id. He felt that
unelected judges would eventually erode the power of elected officials, and essentially become a
tyrannical body that keep their position for life. Id.
127
Laura WW., 856 N.Y.S.2d at 260; Phillips v. Irons, 1-03-2992, 2005 WL 4694579 (Ill. App. Ct.
Feb. 22, 2005).
128
Jhordan C. v. Mary K., 179 Cal. App. 3d 386, 386 (Ct. App. 1986); McIntyre v. Crouch, 98 Or.
App. 462, 462 (1989).
129
McIntyre, 98 Or. App. at 462.
130
See generally Filiation Definition, DICTIONARY.COM,
http://dictionary.reference.com/browse/filiation (last visited Feb. 17, 2013) (defining filiation as
the judicial determination of paternity of a child, especially of one born out of wedlock.).
131
McIntyre, 98 Or. App. at 464. The mother denied this claim in her answer to the complaint. Id.
In addition, she denied that the sperm donor would accept responsibility for the child in the form of
support (financially and emotionally). Id.
132
OR. REV. STAT. ANN. 109.239 (1997). The Oregon statute states:
If the donor of semen used in artificial insemination is not the mother's
husband: (1) Such donor shall have no right, obligation or interest with
respect to a child born as a result of the artificial insemination; and (2) A
child born as a result of the artificial insemination shall have no right,
obligation or interest with respect to such donor. Id.
174

Amendment and the federal constitutional right of privacy.
133
The Oregon Court
of Appeals eventually held that the statute as applied violated the Due Process
Clause if he could prove that he and the mother agreed that he would have paternal
rights.
134
The court reasoned that due process provided the same level of protection
to a sperm donor as a non-sperm donor.
135
However, the court did not rule in the
sperm donors favor because the court felt that the trial court did not err in denying
his motion for summary judgment.
136

In Jhordan C. v. Mary K.,
137
the donor, who provided semen for artificial
insemination directly to the mother, brought an action to establish parental and
visitation rights.
138
The trial court held that the sperm donor was the legal father,
but stated that he had no input in the childs schooling, medical and dental, and
day-to-day maintenance.
139
This appears to favor the sperm donor since he is
being recognized as the childs father, but a closer look at the courts holding says
otherwise.
140
The sperm donor has to pay child support, but has no say in the
important decisions regarding the childs life.
141
In effect, the sperm donor is able
to maintain a connection with his child, but his role is reduced to that of a spectator
when it comes to the decisions that define fatherhood.
142

133
McIntyre, 98 Or. App. at 467.
134
Id. at 470.
135
Id. at 471 (He has complied with the procedural requirements to bring this filiation action. If
he can prove the facts that he asserts in his affidavits, he clearly has grasped the opportunity to
participate in the rearing of his child.).
136
Id. at 472. The Court rested its decision on the fact that the mother did not have an opportunity
to respond to the sperm donors allegations. Id.
137
See Jhordan C. v. Mary K., 179 Cal. App. 3d 386, 386 (Ct. App. 1986).
138
Id. at 39091. Initially the sperm donor was given visitation rights, but he had to pay child
support. Id.
139
Jhordan C., 179 Cal. App. 3d at 391.
140
Id. at 398 ([B]y obtaining Jhordan's semen through a licensed physician, and because the
parties by all other conduct preserved Jhordan's status as a member of Devin's family, the trial
court properly declared Jhordan to be Devin's legal father.).
141
Id. at 391.
142
See Garret D. Evans & Kate Fogarty, The Common Roles of Fathers, EDUCATION.COM,
http://www.education.com/reference/article/Ref_Common_Roles_Fathers/ (last visited Feb. 17,
2013). The sperm donor in this case is most similar to the role of participator/problem solver
which states:
In the problem-solver role, dads are modeling effective problem-solving skills
for their child. They have an opportunity to show their child how to make
and act on decisions, as well as experience the consequences of their actions
and decisions. This process fosters a child's responsibility, independence, and
self-reliance. If children are raised without a role model for effective
problem-solving, they often adopt poor strategies that lead them to become
ineffectual and helpless in problematic situations. Children and adults with
deficient problem-solving skills often become needy and dependent on others
to "make things right" in their life. On the positive side, fathers who model
healthy problem-solving in relationships have children who are less
aggressive and who are more popular with their peers and teachers. Id.
175

V. Analyzing the Kansas Statute

A. Equal Protection

The Supreme Court has often used the Equal Protection Clause to protect
fundamental rights such as interstate travel,
143
voting,
144
and access to the judicial
process.
145
The Courts use of equal protection to safeguard fundamental rights is
based on the Courts desire to avoid the negative connotations of the Lochner era,
146

with regard to substantive due process.
147
Accordingly, the effect of the
Governments infringement is the same whether a right is deemed fundamental
under the Equal Protection Clause or under the Due Process Clause.
148
Under either
clause, the Governments infringement on a fundamental right is subject to strict
scrutiny.
149
In Romer v. Evans,
150
the Supreme Court stated that the Equal
Protection Clause must coexist with the practical necessity that most laws
discriminate for one reason or another, and often results in a disadvantage for
various groups or persons.
151
The disadvantage is fine so long as the law does not
target a fundamental right or a suspect class.
152
When a law does target a
fundamental right or a suspect class, the Supreme Court places the burden on the

143
Shapiro v. Thompson, 394 U.S. 618, 64041 (1969) (holding that it is unconstitutional for a
state to require a one-year residency before receiving welfare because it violates the right to
travel); see also Saenz v. Roe, 526 U.S. 489, 51011 (1999) (holding that durational residency
requirements violate the right to travel by denying new residents the same privileges and
immunities enjoyed by other citizens in the same state).
144
Bush v. Gore, 531 U.S. 98, 105 (2000) (noting that voting was a fundamental right and that the
Equal Protection Clause guarantees that voter ballots will not be devalued by arbitrary or disparate
treatment); Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666 (1966) (holding that a state
violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the
economic status or payment of any fee as a means for allowing people to vote); Reynolds v. Sims,
377 U.S. 533, 566 (1964) (holding that the Equal Protection Clause guarantees the opportunity for
equal participation by all voters and anything that dilutes the weight of votes impairs basic
constitutional rights under the Fourteenth Amendment).
145
Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (holding that the right to counsel applies to the
states as well); Eskridge v. Washington, 357 U.S. 214, 215 (1958) (declaring a state law
unconstitutional that allowed trial judges to provide a free transcript only if it promoted the interest
of justice); Griffin v. Illinois, 351 U.S. 12, 1617 (1956) (holding that due process and equal
protection guarantees indigent defendants receive transcripts on appeal in all criminal cases).
146
Stephen A. Siegel, Lochner Era Jurisprudence and the American Constitutional Tradition, 70
N.C.L. REV. 1, 810 (1991); see also Lochner v. New York, 198 U.S. 45, 45 (1905). The Lochner
era is period in legal history in which the Court struck down laws held to be infringing on
economic liberty or private contract rights. Siegel, supra.
147
See Siegel, supra note 146, at 810. The author details the history of the Lochner and explains
why modern courts have tended to stay away from substantive due process analysis when
confronted with a fundamental right. Id.
148
See Loving v. Virginia, 388 U.S. 1, 1112 (1967) (holding that the states law violates equal
protection and due process). In Loving, an inter-racial couple was charged with violating
Virginias antimiscegenation statute, which banned inter-racial marriages. Id. The couple was
found guilty and sentenced to a year in jail. Id. The Court found that the statute violated equal
protection because the law classified on the basis of race, and violated due process because the
government was infringing on the fundamental right to marriage.
149
Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1268 (2007)
150
Romer v. Evans, 517 U.S. 620, 620 (1996).
151
See id. at 631.
152
Id at 639.
176

government to prove that there is a compelling interest and the means chosen are
necessary.
153

In Skinner v. Oklahoma, the Supreme Court addressed the Oklahoma
Habitual Criminal Sterilization Act, which required surgical sterilization for
individuals who have been convicted two or more times of crimes involving moral
turpitude.
154
Writing for the majority Justice William Douglas stated that the statute
infringed on the basic rights of man and that procreation was fundamental to the
existence and survival of the human race.
155
Ultimately, the Court applied strict
scrutiny under the Equal Protection Clause and held that the law was
unconstitutional because the state was infringing on the prisoners fundamental right
to procreate.
156

Here, the Kansas statute should be subject to strict scrutiny because it is
infringing on a mans fundamental right to reproductive autonomy by compelling a
sperm donor to be a father.
157
This right derives from the decisions of Skinner and
Roe, which hold that there is a fundamental right to be a parent (Skinner) as well as
the right to not be a parent (Roe).
158
As such, Kansas must have a compelling
interest in forcing a sperm donor who does not go through a fertility clinic to be the
legal father.
159
There is no question whether there is a practical necessity for having
a man who has engaged in sexual intercourse to be responsible for any child that
may result.
160
The practical necessity exists because the father could simply choose
to avoid his obligations, and the government would be forced to step in and provide
assistance for the child.
161
Further, the Governments interest, in requiring child
support from the father, serves a public interest since taxpayers are the ones paying
to support the child in the absence of the father.
162
Thus, it is clear to see that
requiring absentee fathers to pay child support serves the goal of reimbursing the
taxpayers.
163

153
See, e.g., Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 62627 (1969); Shapiro v.
Thompson, 394 U.S. 618, 634 (1969).
154
Skinner v. Oklahoma, 316 U.S. 535, 536 (1942).
155
See id. at 541.
156
See id.
157
Id.; see also Roe v. Wade, 410 U.S. 113, 173 (1973). The Court in Skinner announced that
there is a fundamental right to procreate. Skinner, 316 U.S. at 541. Moreover, the Court in Roe
announced that there was a fundamental right to privacy, which includes the right to not be a
parent. Roe, 410 U.S. at 113.
158
Roe, 410 U.S. at 113; Skinner, 316 U.S. at 541.
159
See Romer, 517 U.S. at 631.
160
See Murphy v. Myers, 560 N.W.2d 752, 754 (Minn. Ct. App. 1997) (. . . to ensure [that] the
mother does not bear full financial responsibility for the child . . . .); see also Donald C. Hubin,
Daddy Dilemmas: Untangling the Puzzles of Paternity, 13 CORNELL J.L. & PUB. POLY 29, 30
(2003) (stating that society has an interest in making fathers financially responsible for their
children so that society does not have to provide support from out the public coffers.).
161
Murphy, 560 N.W.2d at 754 (stating that the purpose of child support was to ensure that mother
did not have to bear the full responsibility of raising a child).
162
See Steve Hargreaves, Over $100 Billion Is Owed In Unpaid Child Support Nearly Half of
That to Taxpayers Supporting Children On Public Assistance, MONEY.CNN.COM (Nov. 5, 2012),
http://money.cnn.com/2012/11/05/news/economy/unpaid-child-support/index.html. This article
discusses the economic impact that unpaid child support has on taxpayers. Id. In addition, the
article states that 82% of the people who owe back child support are men. Id.
163
Id. If the government does not receive the back child support from the fathers, the mothers
would have to seek public assistance. Id. The money for public assistance comes from the
taxpayers. Id.
177

However, in cases of artificial insemination, there exists no practical
necessity for compelling the sperm donor to be a father financially where there is no
physical intimacy and the mother knowingly solicits a donation with the
understanding that the sperm donor will not bear any parental responsibility, unless
he himself contractually agrees to do so.
164
No important governmental interest
exists in forcing a sperm donor to pay child support for a child, other than to punish
the sperm donor when the intent of child support is to support the child, not to
punish the father.
165

Therefore, the Equal Protection Clause, in cases of artificial insemination,
should allow a sperm donor to relinquish his parental rights without having to go
through a fertility clinic.
166
As the law stands, today sperm donors are subject to
vexing laws, which compel them to be fathers financially, despite there being a
clear agreement between the mother and the donor that he has no obligations to the
child.
167
For the reasons stated above, the treatment of men with regard to parental
rights is a violation of the Equal Protection Clause,
168
and the Due Process
Clause.
169

B. Substantive Due Process

In Washington v. Glucksberg, the Supreme Court held that the Due
Process Clause protects fundamental liberty interests from deprivation by the
government, regardless of the procedures provided, unless the infringement is
narrowly tailored to serve a compelling state interest.
170
Any asserted fundamental
liberty interest must be carefully described so that the court can proceed with the
correct analysis under the Due Process Clause.
171
The fundamental right to privacy
is the right of the individual, married or single to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as the
decision whether to be or beget a child.
172
When a law is not burdening a
fundamental right or targeting a suspect class, the law will be upheld under rational
basis review.
173

Here, the Kansas statute is an unwarranted intrusion into the fundamental
right of reproductive decision-making.
174
As applied, the statute discriminates
against a sperm donor because a sperm donor must go to a fertility clinic in order to

164
See KAN. STAT. ANN. 23-2208(f) (The donor of semen provided to a licensed physician . . .
is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in
writing by the donor and the woman.).
165
State v. Anonymous, 159 Ariz. 442, 443 (Ct. App. 1988) (finding it clear from the legislative
purpose that child support was not intended to punish a parent).
166
See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (The Equal Protection
Clause of the Fourteenth Amendment commands that no State shall deny to any person within its
jurisdiction the equal protection of the laws, which is essentially a direction that all persons
similarly situated should be treated alike.).
167
168
See U.S. CONST. amend. XIV, 2. (No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.).
169
See discussion infra Part V.B.
170
Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
171
See id.
172
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
173
See Romer, 517 U.S. at 631.
174
See Chuck supra notes 16 and accompanying text.
178

absolve himself of any obligations to potential children.
175
To put it differently, the
Kansas statute does not recognize the relinquishment of the sperm donors paternal
rights unless he subjects himself to an examination, an unreasonable form of
governmental intrusion.
176
Arguably, there is some rational behind requiring that
the procedure be performed by a doctor because the government wants to make sure
that child will be born free of any genetic defects or diseases.
177
Nevertheless, when
the mother knows the donor, there should be a presumption that the sperm donor is
fit to provide a donation. This is comparable to intercourse because in the moment
before intimacy one does not stop to examine his or her partner about their genetic
history.
178
Granted, artificial insemination is not the same as intercourse, but
nonetheless they can share the same resultpregnancy.
179
The Kansas statute does
not recognize this distinction and that failure to recognize this distinction produces
unfair results such as what happened to William Marotta.
180

C. Rebutting the Counter-Arguments

While the argument can be made that the sperm donor should have just
gone through a fertility clinic to ensure that he would not be subject to future
obligations, it misses a critical fact.
181
A woman (or couple) may not have the
financial means to go to a fertility clinic to have the procedure done, and thus are
being discriminated against for their economic status.
182
In general, an individual
should not have children if they cannot afford to care for the child, but the law does
not require that all potential parents have a certain income in order to bare children.

175
See id.
176
See U.S. CONST. amend. IV. (guaranteeing the people of the United States that they will be free
from unreasonable government intrusion) ; see also Skinner v. Ry. Labor Executives Assn, 489
U.S. 602, 61314 (1989) (stating that the Fourth Amendment guarantees the privacy and dignity
against arbitrary and invasive acts by government actors or those at their direction). But see Kyllo
v. United States, 533 U.S. 27, 42 (2001) (stating that what a person knowingly exposes to the
public is not subject to Fourth Amendment protection); Katz v. United States, 389 U.S. 347, 350
(1967) (finding that the Fourth Amendment cannot be translated into a general constitutional right
to privacy).
177
See What You Should Know Reproductive Tissue Donation, FDA.COM (Nov. 5, 2010),
http://www.fda.gov/BiologicsBloodVaccines/SafetyAvailability/TissueSafety/ucm232876.htm.
The article states that reproductive tissue donors are screened for relevant communicable disease
agents and diseases, which are common sexually transmitted diseases such as, but not limited to,
syphilis, chlamydia, gonorrhea, and HIV. Id. In addition to the diseases already mentioned sperm
donors are also test for Human T-lymphotropic virus and Cytomegalovirus. Id.
178
Contra id.
179
See Nivin Todd, Infertility and Artificial Insemination, WEBMD.COM,
http://www.webmd.com/infertility-and-reproduction/guide/artificial-insemination (last visited Mar.
6, 2013) (stating that insemination increases the possibility of pregnancy).
180
Supra note 4 and accompanying text.
181
KAN. STAT. ANN. 23-2208(f) (1994). The statute clearly states that any insemination
performed by a physician will mean that the sperm donor will not be recognized as the childs
father.
182
See Artificial Insemination, DOCSHOP.COM,
http://www.docshop.com/education/fertility/treatments/artificial-insemination (last visited Mar. 6,
2013). This article states that artificial insemination is expensive because there cost associated
with the investigation and diagnosis of the semen; drug therapy to make the woman more receptive
to the procedure; the actual insemination procedure; and the cost of the hospital stay. Id. In
addition, the article notes that people use artificial insemination because they cannot afford the
more advanced procedures. Id.
179

On the contrary, the law has recognized the right to procreate, and has gone to great
length to protect this right from all forms of governmental intrusion.
183
Thus, the
Kansas statute as applied is unconstitutional and is subject to strict scrutiny review
because it burdens the sperm donors fundamental right to privacy concerning his
reproductive decision-making.
184
As a byproduct of the statutes discrimination
against sperm donors, economically challenged women and couples who cannot
afford to use a fertility clinic are being discriminated against as well.
185
In light of
the unconstitutionality of the Kansas statute, it must be rewritten so that it may be
aligned with the Constitution.

VI. Proposed Statute

In order to conform with the Constitution, Kansas must allow a sperm
donor the same reproductive choice recognized by the Supreme Court in its
decisions since the landmark case of Roe v. Wade.
186
Thus, if a sperm donor is
approached by a couple requesting semen for insemination, there should be the
presumption that he will not have any liabilities or obligations to any child that
results from his donation.
187
However, if the sperm donor wants to maintain a
relationship with the child that results from his donation, then he must contract with
the woman or couple before giving his donation stating that he will be allowed to
maintain a relationship with the child and the terms of the relationship. The
proposed statute states:
(1) A husband who consents in writing to his wife being
artificially inseminated with donor sperm will be deemed the
father of any child born as a result of the insemination;
(2) the sperm donor will have no rights or liabilities in respect to
the use of the semen, unless the sperm donor and the mother
contractually agree that the sperm donor will have rights or
liabilities to any child born as a result of the insemination; and
(3) any child born as a result of artificial insemination will have
no rights or liabilities in respect to the sperm donor, unless the
sperm donor contractually agrees that the child will have rights.
First, the proposed statute maintains the general rule that any child born as a result
of artificial insemination to a married woman will be the child of her husband unless
he does not consent in writing. Second, the proposed statute removes the provision
that a physician must perform the insemination.
188
By removing this provision from
the statute, the law is no longer discriminating against economically disadvantaged
women or couples who cannot afford to use a fertility clinic.
189
Moreover, it creates
the presumption that the sperm donor will have no rights or obligations unless he

183
See Skinner 316 U.S. at 541.
184
See U.S. CONST. amend. XIV, 2; Roe v. Wade, 410 U.S. 113, 153 (1973). The right to
privacy concerning reproductive decision-making, which has been recognized for women should
apply through the Equal Protection Clause to men as well. U.S. CONST. amend. XIV, 2; Roe, 410
U.S. at 153.
185
See Artificial Insemination, supra note 184.
186
See discussion supra Part III.
187
188
See supra note 41.
189
See discussion on how poor women and couples are being discriminated against by Kansass
statute supra Part V.C.
180

contractually agrees with the mother to be liable. Finally, the proposed statute
addresses a potential problem that may exist between the legitimate children of the
sperm donor, and the child that results from the insemination.

A. Application to William Marotta

Applying the proposed statute to William Marotta, there would be no issue
or media backlash. First, pursuant to section 2 of the statute, William would have
no liability or obligation to the child that resulted from his donation because he did
not contract with the couple to be liable; in fact, he contracted to eliminate his
responsibility. Under the proposed statute, William would not have needed to
contract with the couple he donated to because there is a presumption against the
sperm donor having any relationship with the child. Second, the child that resulted
from the insemination will not have any rights to Williams estate, which allows
Williams legitimate children to know that there will be no surprises with their
inheritance. Finally, as a byproduct of the proposed statute economically
challenged women and couples will be able to solicit friends for donations without
having to give their discretionary income to a fertility clinic.
190

VII. Conclusion

In conclusion, the intent of this comment is to inform readers about the
constitutional concerns of the Kansas statute as it stands today.
191
At the time
Kansass artificial insemination statute was adopted, the internet was not as
sophisticated as it is today. In 1994, it was not foreseeable that a woman could
purchase an artificial insemination kit on the internet. In addition, a woman could
solicit sperm donations from strangers on the internet make and then use the
donation to impregnate herself, without a physician being present. Nor could
Kansas foresee that the statute would unconstitutionally discriminate against sperm
donors and have discrete discriminatory effects on poor woman and couples.
This proposed statute seeks to update the Kansas statute and remove the
discriminatory elements that exist in the statutes application.
192
The constitutional
concerns are removed as the proposed statute satisfies the Equal Protection and Due
Process Clauses of the Fourteenth Amendment.
193
The proposed statute satisfies the
Equal Protection Clause because sperm donors are able to avoid being compelled to
be financial fathers, just as women cannot be compelled to be mothers, financially
or otherwise, against their will.
194
The Due Process Clause is satisfied because the
fundamental right of reproductive decision-making is no longer being infringed
upon, and sperm donors do not have to subject themselves to state sponsored
examination if a woman specifically requests his semen.
195
Additionally, the
discrete discriminatory effects are removed by allowing women and couples to
procure a donation without going to a fertility clinic.
196

190
See discussion supra Part V.
191
See discussion supra Part V.
192
But see supra note 10.
193
See discussion supra Part VI.
194
See discussion supra Part V.A.
195
See discussion supra Part V.B.
196
See discussion supra Part V.C.
181

In sum, no law is perfect nor is the law capable of making everyone happy.
Instead, this proposed statute seeks to balance the interests of the people and the
government. When a law is unbalanced, it can discriminate to the point of
absurdity, as seen in the case of William Marotta. For the above mentioned reasons,
the Kansas statute must be amended to align with the Constitution and the
technological advancements of today.
182

THE STRIPPER AND THE OTHER WOMAN: THE EFFECTS AND INEFFECTIVENESS OF
THE SINGLE-PURPOSE POLE TAX

Hayley Panasiuk

Introduction

In his classic novel, A Woman of No Importance, Oscar Wilde wrote:
Every saint has a past and every sinner has a future.
1
When he wrote this classic,
Wilde probably did not foresee the economic burden of that future, where today,
every sinners future is prey to a plethora of sin taxes. Instead of raising income tax
rates, lawmakers have chosen the more politically attractive taxes on unhealthy
commodities or services.
2
As states struggle to close budget gaps and reduce
deficits, lawmakers have proposed sin taxes on everything from cigarettes to soda,
candy, and bottled water.
3

A sin tax
4
is a narrow excise tax imposed on the sale of socially
undesirable commodities or services in order to generate revenue.
5
Lawmakers
generally justify sin taxes on the basis that consumption of sinful products or
services leads to broader societal costs that are not taken into account by individual
consumers.
6
Sin taxes are used by state and federal governments for two
simultaneous purposes: to prevent or decrease an unhealthy behavior and to fill a
budget deficit.
7
These two purposes, however, are often inherently in conflict,
creating a constant tension between the opposing ideals of any particular sin tax.
8

To bolster revenue for programs that are severely underfunded,
9
states like
Utah, Texas, and Illinois are honing in on a new type of sin tax, a "pole" tax, aimed

1
OSCAR WILDE, A WOMAN OF NO IMPORTANCE (Penguin Books 2007) (1893).
2
See Catherine Rampell, For Cash-Strapped States, Sin Is Sure Lucrative, N.Y. Times, April 17,
2010, at WK5 (The honest way to raise more revenue would be to raise income tax rates . . . But it
is more politically attractive to tax these kinds of things. No one can get mad at you for taxing
people who drink too much.).
3
See States New Sin Tax Now in Effect, KOMONEWS.COM (May 31, 2010, 11:00 PM),
http://www.komonews.com/news/local/95295699.html (In Seattle, sin taxes are in effect on gum,
candy, bottled water, and beer.); see also Rampell, supra note 2. (Several states have considered
taxes on pornography, escort services, and marijuana.).
4
Defined as an excise tax imposed on goods or activities that are considered harmful or immoral
(such as cigarettes, liquor, or gambling). See luxury tax. TAX, Black's Law Dictionary (9th ed.
2009), tax.
5
David J. DePippo, I'll Take My Sin Taxes Unwrapped and Maximized, with a Side of Inelasticity,
Please, 36 U. RICH. L. REV. 543, 549 (2002).
6
See Ian W.H. Parry, Should Alcohol Taxes Be Raised?, 21 CRITICALREVIEW 10, 10 (2009).
7
See Jendi B. Reiter, Citizens or Sinners? - the Economic and Political Inequity of "Sin Taxes" on
Tobacco and Alcohol Products, 29 COLUM. J.L. & SOC. PROBS. 443 (1996).
8
See id. at 444.
9
See Nathan Koppel, Houstons Strip Clubs Hit by New Pole Tax, WALL ST. J. (June 27, 2012,
7:33 PM),
http://online.wsj.com/article/SB10001424052702304830704577492890714972590.html; see also
Mark Nelson, Making Sense of DNA Backlongs, 2010 Myths vs. Reality, U.S. Department of
Justice, available at https://www.ncjrs.gov/pdffiles1/nij/232197.pdf; Nicole Sanseverino, Texas
Sexual Assault Victim Recovery Programs Desperate for Funding, DAILY TEXAN (Aug. 29, 2011,
11:39 PM) http://www.dailytexanonline.com/news/2011/08/29/texas-sexual-assault-victim-
recovery-programs-desperate-for-funding.
183

at strip clubs offering nude dancing in the state.
10
Pole taxes exist for one
purpose: raising revenue.
11
Sponsoring legislators have insisted they are not out to
close the clubs,
12
and empirical evidence, used by lawmakers as justification,
suggesting a causal link between strip clubs and sexual assault does not exist.
13
The
pole tax is unique from other sin taxes before it because it does not have the dual
purpose of decreasing consumption and simultaneously raising revenue to fund
programs that prevent such consumption.
14

Modern sin taxes are more likely than historical sin taxes to be proposed
with earmarking allocation plans, but they are also more likely to be
misappropriated into a states general fund to support government discretionary
spending for other programs during budget deficits.
15
When revenue is
misappropriated from intended funding, the sin tax can still be justified as
preventing consumption of unhealthy behavior through the tax itself.
16
However,

10
The tax in Utah is popularly called a nudity tax. See also Becky Bruce, Court Considering
Challenge Over So-Called Nudity Tax, KSL.COM (June 4, 2008, 2:25 PM)
http://www.ksl.com/?nid=148&sid=3460522.
11
See Koppel, supra note 9; see also HUMAN RIGHTS WATCH, supra note 9; Sanseverino, supra
note 9.
12
See Associated Press, Texas Adds Pole Tax to Strip Clubs for $5-Per-Customer Levy,
FOXNEWS.COM (Dec. 21, 2007), http://www.foxnews.com/story/0,2933,317896,00.html
(Supporters of the tax say they are not out to close the clubs that would just mean less money
for victims of sexual assault.).
13
See UNIV. OF TEX. AT AUSTIN, AN ASSESSMENT OF THE ADULT ENTMT INDUS. IN TEX.:
COMPREHENSIVE REP. 9 (2009), available at
https://repositories.lib.utexas.edu/bitstream/handle/2152/14736/bbr_2009-03-31-adult-
entertainment-ExecSum.pdf?sequence=2 [hereinafter 2009 TEXAS REPORT] (No study has
authoritatively linked alcohol, sexually oriented businesses, and the perpetration of sexual
violence. Research suggests that some exotic dancers have experienced sexual violence at work,
asserting that potential victimization is a concern for women in this profession. What is not known
is if there is a causal relationship between sexually oriented businesses and the perpetration of
sexual violence.). The somewhat increased criminal activity outside of strip clubs was
downgraded in a study by Daniel Linz, a communications and law professor at the University of
California, Santa Barbara, who said studies that rely on such data are flawed since they do not
account for zoning regulations on strip clubs, which are often forced to seedier sides of town,
where there is greater crime already. See Tracy Clark-Flory, Taxing Strip Clubs for Rape, SALON
(May 26, 2012, 12:00 AM), http://www.salon.com/2012/05/27/taxing_strip_clubs_for_rape/.
14
See Associated Press, supra note 12 (Supporters of the tax say they are not out to close the
clubs that would just mean less money for victims of sexual assault.). State Representative
Ellen Cohen, a Houston Democrat who sponsored the bill and who is also president of a women's
center that could get financing from the new law, said, This is an industry that largely employs
women, and this gives them an opportunity to raise funds for a crime that affects women... I've
been told the fees to get into these places can be $10, $15. I don't think another $5 is going to
prevent someone from going. Id. Jerry Trigg, an architect who claims to go to strip clubs in Dallas
and Houston about three times a week, spending between $50 and $200 or more each visit, said a
$5 tax won't affect the number of drinks or lap dances he buys or tips he gives. Id.
15
See John D. Blum, Sin Tax, Forgiveness, and Public Health Governance 5 (Loy. Univ. Chi. Sch.
of Law Research Paper No. 2012-010), available at http://www.inter-disciplinary.net/wp-
content/uploads/2011/06/John-Blum-paper-Clean-Copy-Sin-Tax-4.docx.doc2.pdf.
16
See Rampell, supra note 2. (Economists doubt that sin taxes greatly affect the behavior of most
Americans, especially when the amounts tacked on are quite small (as they usually are). Demand
for things like cigarettes and soda is relatively inelastic. That means modest increases in price
dont greatly influence most peoples behavior... This underscores why the real value of sin taxes
is their ability to generate cash. After all, taxes that truly succeeded in changing behavior would be
self-defeating. If a cigarette tax forced all puffers to quit, there would be severe withdrawal
symptoms not only for smokers but for states that relied on the tax for revenue.)
184

when earmarked pole tax revenue flows to the general revenue fund to fill budget
gaps, the sole purpose of the tax (funding rape crisis centers) no longer exists, and
the tax itself becomes little more than a generally allocated income tax on strip
clubs.
17
Because the pole tax is among the first of the new single-purpose sin
taxes to be implemented in the United States, the tax will be analyzed to represent
the ineffectiveness and consequences of single-purpose, general fund income taxes
disguised as earmarked sin taxes.
18
Not only is the pole tax misleading to
taxpayers
19
but it is detrimental to the industry being taxed, to consumers, and to
those effected by the taxs stigma, particularly female workers in the entertainment
industry.
20
This Note will discuss the intended versus the actual effects of pole
tax revenue allocation goals in the states of Utah, Texas, and Illinois as well as the
real effects on those victimized by the consequences of the tax.
Part I of this Note briefly discusses the history and progression of sin taxes
in the United States and describes the newest manifestation of the sin tax: the pole
tax or the skin tax.
21
The pole tax is different from other historically
implemented sin taxes and more representative of a new crop of sin taxes,
particularly taxes levied on the adult entertainment industry. That is, taxes that are
proposed singularly to fill state budget deficits and not to curb a particular behavior.
Part II explores the general and earmarked revenue allocation plans that have been
proposed and implemented with sin taxes. Proponents of the newly proposed group
of single-purpose sin taxes argue in favor of these taxes in order to generate revenue
for a particular program or area of funding. While contemporary sin taxes have
generally been implemented with revenue earmarked to a particular program or
fund, states have folded under the pressure of gaping budget deficits and disperse
funds to different programs. Part III describes the pole tax revenue allocation
plans implemented in Utah, Illinois, and Texas and the actual results of each
respective plan. Part IV argues that the pole tax will actualize as nothing more

17
See id.
18
See, e.g., Associated Press, Tough Times Boost Push for Taxes on Porn, Strip Clubs, USA
TODAY (Feb. 27, 2009, 9:18 AM), http://usatoday30.usatoday.com/news/nation/2009-02-27-porn-
tax_N.htm; Jennifer Sullivan, Bill Seeks 18.5% Porn Tax, SEATTLE TIMES (Feb. 11, 2009, 12:00
AM), http://seattletimes.com/html/localnews/2008731079_porntax11m0.html (Washington had
pushed for a tax increase on adult entertainment movies and other services that was projected to
bring in around $17.8 million in state revenue in two years); 2011 TN S.B. 2860 (NS) (Tennessee
introduced the Food Tax-Adult Materials Tax Swap Act, which would impose a twenty-five
percent tax on admission for viewing a sexually explicit business, escort services, and individual
charges for viewing sexually-explicit movies on cable television or in hotels).
19
See DePippo, supra note 5, at 545 (citing Brenda Yelvington, Excise Taxes in Historical
Perspective, in TAXING CHOICE: THE PREDATORY POLITICS OF FISCAL DISCRIMINATION 31, 32
(William F. Shughart, II ed., 1997) (quoting THE REPORTS OF ALEXANDER HAMILTON 34 (Jacob
E. Cooke ed., 1964))).
20
See Anna Merlan, Dawn Rizos, Newts Favorite Strip Club Owner, Welcomes the Latest Pole
Tax Setback, DALLAS OBSERVER BLOG (Jun. 24, 2011, 1:09 PM),
http://blogs.dallasobserver.com/unfairpark/2011/06/dawn_rizos_owner_of_the_lodge.php (Strip
Club owner Dawn Rizos said it is not paying the tax that worries her but the stigma. Theyre
saying we exploit women somehow.).
21
Newspaper articles, journal articles, notes, comments, and other sources of information refer to
the terms pole tax and skin tax interchangeably to describe a per-patron tax on strip club
attendance. Utah media refers to the state tax on strip clubs the nudity tax. This Note will use the
term pole tax.
185

than an income tax on strip clubs
22
due to the trend of earmarking schemes flowing
to general revenue funds and the lack of an empirical link between strip clubs and
rape. As a result, the pole tax has widespread negative effects on those victimized
by the tax, including taxpayers and women working in the adult entertainment
industry. The tax is misleading to taxpayers,
23
promulgates misleading stereotypes
that strip clubs and female nude dancers are linked to rape, sparks noncompliance,
24

and opens the floodgates for states seeking ways to fill budget deficits with single-
purpose, general fund income taxes disguised as earmarked sin taxes.

I. A Brief History of Sin Taxes in the United States

A. Revolution to Prohibition

Historically, sin taxes were a way to raise revenue during times of war.
25

In 1791, George Washington introduced a tax on whiskey as a means of solving the
young United States governments debt problem.
26
This tax was popularly despised
and spurred the Whiskey Rebellion shortly thereafter.
27
Many argued that the
primary objective of this tax had been to assist in paying off the national debt
incurred during the Revolutionary War,
28
however, others believed that alongside
revenue concerns was a moral and public-health purpose.
29
Regardless of
Congresss intent, Americans were disenchanted with what the government had
found to be a constant source of revenue.
30

American taxpayers were was far more welcoming to the excise taxes that
were imposed only a decade later during the War of 1812.
31
The government
labeled these excise taxes war taxes, promised they would be temporary, and
designated the substantial revenue to wartime emergencies, which made the
contemporaneous effort more attractive to American taxpayers.
32
In order to help
pay for the Civil War, the U.S. government again used excise taxes primarily on
alcohol to generate substantial revenue.
33
During and shortly after the Civil War,

22
See Associated Press, supra note 12 (Supporters of the tax say they are not out to close the
clubs that would just mean less money for victims of sexual assault.).
23
See DePippo, supra note 5.
24
See Ionna Makris, A Naked Gamble That the Pole Tax Gets Stripped, TEX. TRIB. (July 15,
2011), http://www.texastribune.org/texas-taxes/strip-club-fee/a-naked-gamble-that-the-pole-tax-
gets-stripped/ (Apart from consumers avoiding the tax, only 111 of 176 strip clubs in Texas have
paid the pole tax at all.).
25
Defined as an excise tax imposed on goods or activities that are considered harmful or immoral
(such as cigarettes, liquor, or gambling). See luxury tax. TAX, Black's Law Dictionary (9th ed.
2009), tax.
26
See SAMUEL E. MORRISON, OXFORD HISTORY OF THE UNITED STATES 1778-1917 182 (1927).
27
See id.
28
See id.
29
See TUN YUAN HU, THE LIQUOR TAX IN THE UNITED STATES, 1791-1947 13 (1950).
30
31
See id.
32
See id; see also Rampell, supra note 2 (The honest way to raise more revenue would be to
raise income tax rates, said Peter L. Faber, a tax lawyer and partner at McDermott Will & Emery
in New York. But it is more politically attractive to tax these kinds of things. No one can get mad
at you for taxing people who drink too much, meaning tipplers are fair game.).
33
See Reiter, supra note 7.
186

however, excise taxes on tobacco as well as alcohol were recognized as a highly
important source of government revenue.
34

Prior to World War I, more than a third of all government revenue in the
United States came from alcohol and tobacco excise taxes.
35
This remained true
until 1913, when the modern income tax system was implemented,
36
which, in
1918, accounted for seventy-nine percent of the federal revenue.
37
Excise taxes on
alcohol remained good law through Prohibition, when the production, sale, and
transportation of alcohol were made illegal.
38
The tax was lowered, however, after
the Civil War when the government found that people turned to hemp, opium or
bootleg liquor as a result of the excise tax.
39
The need to generate tax revenue
during the Great Depression was a primary contributing factor to ending Prohibition
in the United States.
40
Faced with enormous budget deficits in the twentieth and
twenty-first centuries, legislators have recycled and broadened the use of sin taxes
as a modern solution to fiscal problems.

B. Contemporary Sin Taxes

Sin taxes have grown increasingly popular as a means of obtaining quick
and substantial revenue in fiscally strained times. During the financial crisis in the
early 1990s, approximately forty-six percent of revenues generated by new taxes
came from increased excise taxes.
41
In 2001, in response to indications of fiscal
recession, state legislatures enacted around $700 million in excise tax increases.
42

As Christopher Snowden wrote in The Wages of Sin Taxes, The appeal of
sin taxes to cash-strapped governments and when are they not cash strapped? is
plain to see. They are easier to collect than income taxes and less visible than direct
taxes.
43
Faced with the immense budget deficit, President Obama tripled the
federal excise tax on tobacco in 2009, projecting that the hike would raise $38
billion over five years.
44
The U.S. federal government collected $20.6 billion in

34
See J. COMM. OF THE STS. TO STUDY ALCOHOLIC BEVERAGE LS., IMPACT ON ALCOHOLIC
BEVERAGE CONTROL OF TAXN AND MARK-UP: AN OFFICIAL REP. 7-8 (1953).
35
See Christopher Snowden, The Wages of Sin Taxes, ADAM SMITH INST. (May 15, 2012),
http://www.adamsmith.org/research/reports/the-wages-of-sin-taxes.
36
See DePippo, supra note 19, at 545 (citing Brenda Yelvington, Excise Taxes in Historical
Perspective, in TAXING CHOICE: THE PREDATORY POLITICS OF FISCAL DISCRIMINATION 31, 40
(William F. Shughart, II ed., 1997)).
37
See Donald J. Boudreaux & A.C. Pritchard, The Price of Prohibition, 36 ARIZ. L. REV. 1, 4 n.12
(1994).
38
39
See TUN YUAN HU, supra note 29.
40
41
See Nicholas Johnson & Daniel Tenny, The Rising Regressivity of State Taxes, CTR. ON BUDGET
AND POLY PRIORITIES 2 (2002), http://www.cbpp.org/1-15-02sfp.pdf.
42
See id.
43
Snowden, supra note 35; see also Rampell, supra note 2 (The honest way to raise more revenue
would be to raise income tax rates, Peter L. Faber, a tax lawyer, told the New York Times. But it
is more politically attractive to tax these kinds of things. No one can get mad at you for taxing
people who drink too much...). The honest way to raise more revenue would be to raise income
tax rates, said Peter L. Faber, a tax lawyer and partner at McDermott Will & Emery in New York.
But it is more politically attractive to tax these kinds of things. No one can get mad at you for
taxing people who drink too much, meaning tipplers are fair game. Id.
44
See Children's Health Insurance Program Reauthorization Act of 2009, Pub. L. No. 111-3, 123
Stat. 8 (2009); Brad Schiller, Obama's Poor Tax, WALL ST. J., Apr. 1, 2009, at A21.
187

taxes on alcohol, tobacco, firearms and ammunition in 2009, a forty-one percent
increase from 2008, $6 billion of which was credited to the tripled excise on
tobacco.
45

State governments swiftly began raising and adding new sin taxes to keep
up with the recession. In 2009, twelve states raised sales taxes, and fifteen states
raised excise taxes on tobacco and alcohol.
46
In 2010, eleven states increased
cigarette taxes, Colorado imposed a 2.9% tax on sugary drinks and fatty snacks, and
Washington raised taxes on beer and soda.
47
Massachusetts imposed a five percent
excise tax on satellite broadcast services, and New Hampshire placed a new ten
percent tax on gambling winnings.
48
Maryland slapped a nine percent tax on all
alcoholic beverages,
49
and California reaped the benefit of a $3.5 million annual
revenue from taxing medical marijuana collectives.
50
Now that Colorado and
Washington have legalized marijuana for recreational purposes, many have
indicated the potential for state governments to generate significant tax revenue
from marijuana.
51
Among the most recent of sin taxes in the United States,
following Utahs nudity tax, Illinois and Texas have adopted a controversial pole
tax that taxes strip clubs that sell alcohol.
52

C. The Pole Tax

Not since Pope Sixtus IV and his highly successful and revenue-generating
tax on prostitution have legislators made blatant attempts to tax the sex industry
without intending to shut it down.
53
Legislators have increasingly found it
beneficial to tax sins, and states are more and more willing to explore potential
avenues to generate substantial revenue from untraditional trades, such as

45
See Leslie Gevirtz, U.S. Pockets $20.6 Billion in Sin Taxes, REUTERS (July 14, 2010, 5:44 PM)
http://www.reuters.com/article/2010/07/14/us-taxes-sin-idUSTRE66D56X20100714.
46
See Nicholas Johnson, Andrew Nicholas & Steven Pennington, Tax Measures Help Balance
State Budgets: A Common and Reasonable Response to Shortfalls, CTR. ON BUDGET AND POLY
PRIORITIES (2009), http://www.cbpp.org/files/5-13-09sfp.pdf.
47
See Katrina Trinko, Political Cowards Love the Sin Tax, USA TODAY (Sept. 20, 2010, 5:13 PM)
http://usatoday30.usatoday.com/news/opinion/forum/2010-09-21-column21_ST_N.htm.
48
See Tax Measures Help Balance State Budgets, supra note 46.
49
See 2011 MD S.B. 994 (NS).
50
See Kelly Phillips Erb, Sweetening the Pot: Taxing Medical Marijuana Reaps Benefits in San
Jose, FORBES (May 16, 2011, 4:19 PM),
http://www.forbes.com/sites/kellyphillipserb/2011/05/16/sweetening-the-pot-taxing-medical-
marijuana-reaps-benefits-in-san-jose/.
51
See Matthew Yglesias, How Cheap Will Legal Pot Be in Colorado and Washington? Not as
Cheap as it Should Be!, SLATE (Nov. 12, 2012, 4:19 PM)
http://www.slate.com/articles/business/moneybox/2012/11/colorado_and_washington_pot_prices_
what_are_the_economics_of_partial_marijuana.html.
52
See Dahleen Glanton, Parsing the Pole Tax, CHI. TRIB. (Aug. 28, 2012)
http://articles.chicagotribune.com/2012-08-28/news/ct-talk-glanton-rape-20120828_1_pole-tax-
strip-clubs-strip-club-owners; see also Manny Fernandez, Texas Justices Uphold Pole Tax on
Strip Clubs, N.Y. TIMES, Aug. 26, 2011, at A10.
53
See JOSEPH TIMOTHY HAYDN, DICTIONARY OF DATES, AND UNIVERSAL REFERENCE 90 (Ulan
Press 2012) (Pope Sixtus IV, licensed a brothel in Rome, and the prostitutes paid him a weekly tax,
which amounted to 20,000 ducats a year, 1471.). See also E. CHRISTOPHER REYES, IN HIS NAME
163 (2011) (He allegedly caught syphilis from one of his many mistresses, issued licenses to
prostitutes, and levied a tax on their earnings, augmenting vastly the papal revenues in the
process.).
188

marijuana
54
and stripping.
55
More recently, Utah, Texas, and Illinois have adopted
taxation on nude dancing, and other states are following their lead.
56

Utah imposes a ten percent tax on sexually explicit businesses and escort
services on the gross receipts of each admission fee, user fee, retail sale of food or
beverage, and any service.
57
The Act, coined the nudity tax, implemented in
2004, adds a ten percent tax to almost anything a strip club can sell, including
services and products. All funds derived from the tax are funneled into a special
revenue fund, called the Sexually Explicit Business and Escort Service Fund,
which provides funding for treatment for sex offenders.
58
A group of adult
entertainment venues and escort services challenged the law on the basis that the tax
violates the First Amendment right to free speech and the Fourteenth Amendment
right to equal protection.
59
The Utah Supreme Court upheld the tax as content
neutral but denied that the tax should be levied on escort services.
60

The Live Adult Entertainment Facility Surcharge Act, implemented in
Illinois and effective on January 1, 2013, requires strip clubs to pay a $3 per-patron
entrance fee.
61
The bill requires strip clubs that serve alcohol or allow liquor in the
establishment to pay $5 per patron.
62
The statute itself says that its intent is to
ameliorate the negative secondary effects associated with the consumption of
alcoholic beverages on the premises of sexually oriented businesses . . . so as to
promote the health, safety, and welfare of the citizens of Illinois.
63
All of the
revenue from the Illinois pole tax will go to sexual assault prevention programs
and health insurance coverage for low-income people.
64

In 2007, Texas state legislators passed the Sexually Oriented Business Fee
Act, which imposed a $5 dollar per-patron fee on nearly two hundred
establishments that both featured live nude performances and allowed the
consumption of alcohol on the premise.
65
Because the fee is imposed on the
sexually oriented business, and not the patron, the business is given discretion to
determine the manner in which [it] derives the money required to pay the fee.
66

The revenue from the Texas pole tax was projected to raise these funds for
sexual assault prevention programs and health care for the uninsured.
67

The Texas Entertainment Association, representing the interests of
sexually oriented businesses, sued the state over the mandatory entrance fee,

54
See Erb, supra note 50.
55
See Fernandez, supra note 52.
56
See Kristi Keck, Strip Clubs, Marijuana Eyed During Budget Crunch, CNN (July 28, 2009),
http://edition.cnn.com/2009/POLITICS/07/28/states.budget.crunch/.
57
Utah Code Ann. 59-27-103 (2012).
58
Id.
59
See Chris Rizo, Utah Justices Uphold Strip Club Tax, LEGAL NEWSLINE LEGAL J. (Nov. 23,
2009, 12:05 AM), http://legalnewsline.com/news/224193-utah-justices-uphold-strip-club-tax.
60
See id.
61
See Live Adult Entertainment Facility Surcharge Act, IL ST CH 35 175/5 (2013).
62
See id (defining a live adult entertainment facility as a a striptease club or other business that
serves or permits the consumption of alcohol on its premises).
63
Id.
64
Live Adult Entertainment Facility Surcharge Act, IL ST CH 35 175/10 (2013).
65
See TEX. BUS. & COM. CODE 102.052(a) (2008).
66
TEX. BUS. & COM. CODE 102.052(a), (c) (2008).
67
See Jim Vertuno, Texas Supreme Court Upholds $5 Strip Club Fee, HUFFINGTON POST (Aug.
26, 2011, 5:19 PM), http://www.huffingtonpost.com/2011/08/26/texas-pole-tax-
ruling_n_938242.html.
189

alleging that the charge violated their First Amendment right to freedom of
expression.
68
The Third District Court of Appeals affirmed the Travis County
District Courts decision to strike down the law as an unlawful prohibition of
freedom of expressive conduct.
69
In August 2011, the Texas Supreme Court
reversed the lower courts, unanimously holding that the fee is constitutional.
70

Legislators have been vocal about the purpose of the pole tax, or rather,
what the purpose of the pole tax is not. Proponents of the tax insist that the goal
is solely to raise funds for sexual assault programs and not to shut down strip clubs
or put an end to the adult entertainment industry.
71
Texas State Representative
Ellen Cohen said, I don't think another $5 is going to prevent someone from going
[to strip clubs].
72
The means to the end of funding such programs is based entirely
on ensuring that the earmarking plan attached to the pole tax is dedicated to the
intended fund and not to another or general fund. The Illinois pole tax
promisingly included a section mandating that the Sexual Assault Services and
Prevention Fund is not subject to any budgetary maneuver that could in any way
transfer any moneys from the Fund into any other fund of the State.
73
Without
actual dedicated revenue allocation, the pole tax has no purpose further than a
general income tax on strip clubs.

II. Proposed and Implemented Sin Tax Allocation Plans

Despite the justification by proponents that sin taxes harbor moral purposes
and public policy-oriented goals, sin taxes are almost always exclusively instituted
to generate revenue.
74
This is demonstrated by the fact that lawmakers are
increasingly willing to breach new areas to raise revenues in order to meet budget
shortfalls.
75
Financial motivation is also evident by the fact that state lawmakers
overwhelmingly design that a majority of sin tax revenue flow into the states
general revenue fund as opposed to specified funds promoting public health and

68
See Combs v. Texas Entm't Ass'n, Inc., 347 S.W.3d 277 (Tex. 2011) cert. denied, 132 S. Ct.
1146, 181 L. Ed. 2d 1020 (2012).
69
See id.
70
See id.
71
See Associated Press, supra note 12.
72
See id.
73
IL ST CH 35 175/15 (2013).
74
See Babak A. Rastgoufard, Too Much Smoke and Not Enough Mirrors: The Case Against
Cigarette Excise Taxes and For Gasoline Taxes, 36 URB. LAW. 411, 423 (2004) (citing William F.
Shughart II, The Economics of the Nanny State, in TAXING CHOICE: THE PREDATORY POLITICS OF
FISCAL DISCRIMINATION 13 (William F. Shughart II ed., 1997)) (The fact that [sin] taxes also
raise revenue is in theory of secondary importance to the promotion of virtue. But revenue is never
inconsequential to government in practice.); see also Stephanie Saul, Government Gets Hooked
on Tobacco Tax Billions, N.Y. TIMES, Aug. 31, 2008, at WK3 (discussing extent to which state
and federal governments rely on revenue from taxes on tobacco). The reliance of government
coffers on the taxes smokers pay, and on the tobacco settlement money, essentially provides a
financial cushion for state governments and could be viewed as a government guarantee for the
survival of the tobacco industry. Id.
75
See Health Care: Plan to Fund Health Reform With Sin Taxes Garners Minimal Support
Among Lawmakers, 107 DTR GG-1, 2009 (People have done a pretty good job demonizing
some of these things and that makes it easier to pass them, said Chris Edwards, tax policy director
at the Cato Institute. The increase in tobacco taxes shows if you work hard enough to demonize
something, you can turn it into a cash cow, he said.).
190

advocating against unhealthy behavior.
76
Some states have even earmarked a
particular sin tax to the states general fund in order to allocated annually based on
the discretion of lawmakers.
77

A. General Revenue Allocation

A study using over twenty-five years of state tax policy research, primarily
from 1981-2006, found that legislators significantly reduced increases in broad
taxes like income and property taxes and turned to sin taxes as a major source of
general revenue funding.
78
According to the study, legislators learned from the
early 1990s tax increases . . . large, broad-based tax increases are political losers and
leads to a loss of businesses, jobs, residents, and economic growth.
79
Many states
allocate their excise tax revenues, particularly tobacco tax revenues, to the general
revenue fund rather than an earmarked fund.
80
General state revenues are funded
from sales, income, property, and other taxes levied by the government.
81
In its
report on the principles of a high-quality state revenue system, the National
Conference of State Legislatures argues that general revenue funding is preferable
to earmarking because there is no guarantee of consistent adequate revenue and
rigid allocation does not permit necessary flexibility among competing uses.
82

One of the most popular examples in recent sin tax history of earmarked
excise tax revenues diverted to state general revenue funds is state tobacco tax

76
See Robert S. Wood, Tobacco's Tipping Point: The Master Settlement Agreement as a Focusing
Event, 34 POL'Y STUD. J. 419, 431 (2006)
77
See Thomas A. Garrett, Earmarked Revenues for Education: A New Test of Fungibility, 26 J. OF
EDUC. FIN. 219, 220 (2001) (Pennsylvania earmarks net state lottery revenues to the states general
revenue fund, which is then allocated annually to senior citizen care. This means that each year the
amount allocated to senior citizen care varies.).
78
See Daniel Clifton & Elizabeth Karasmeighan, Americans for Tax Reform, State Tax Trends
Over Twenty-Five Years: Tax Increases Down, Revenue Sources Shifting 4 (2006),
http://heartland.org/sites/all/modules/custom/heartland_migration/files/pdfs/20327.pdf
(Specifically, states have found tobacco to be their biggest cash cow in the most recent
recession... During the 1990s recession, states raised $5.15 in income taxes for every $1 of tobacco
tax increases. In the 2011 recession, states raised just $0.86 for every $1 of tobacco tax increases..
In other words, states raised more money from tobacco than they did from the income tax in the
previous recession.).
79
See id.
80
See Matthew C. Farrelly, PhD et al., The Impact of Tobacco Control Programs on Adult
Smoking, 98 AM. J. PUB. HEALTH 304, 308 (2008) (Although state leaders indicated their
intention to spend a significant portion of the 1998 MSA (Master Settlement Agreement) funds on
tobacco control efforts, in 2006 only an estimated three percent of state MSA funds were used for
such purposes. Between 2002 and 2005, forty-one states and the District of Columbia increased
cigarette excise taxes, but few states earmark excise tax revenue to support tobacco control
programs. Instead, MSA funds and increased tobacco excise taxes fill short-term budget deficits.).
See also Steven A. Schroeder, M.D., Tobacco Control in the Wake of the 1998 Master Settlement
Agreement, 350 N. ENGL. J. MED. 293 (2004) (discussing the conflicting pressures faced by states
and legislators making tobacco-control policy in a time of budget deficits).
81
See Diana Stone, Funding the Future: States Approaches to Pre-K Finance 2008 Update, PRE-
K NOW RESEARCH SERIES 4 (2008).
82
See National Conference of State Legislatures, Principles of a High-Quality State Revenue
System,
http://www.cga.ct.gov/2005/pridata/Studies/pdf/Tax_Forum_Snell_Principles_Handout.PDF, at 8
(last visited Feb. 23, 2013).
191

revenue garnered from the Master Settlement Agreement (MSA).
83
The MSA was a
nationwide agreement made in 1998 between state attorneys general and the
tobacco industry mandating that the tobacco industry will compensate the public for
years of health costs incurred due to smoking-related illnesses through a series of
payments to the states.
84
The MSA only earmarked approximately $1.7 billion of
the funds for at least five years with the rest flowing into the states general funds.
85

Even after entering the MSA, in which states pledged to direct funds from tobacco
excise taxes towards smoking prevention programs and public health initiatives,
many states abandoned the interest in funding public health initiatives in order to
slow deepening general budget deficit.
86
During the budgetary crisis in 2003,
several states designated nearly all of their tobacco excise tax revenues to cover
budget shortfalls: California allocated approximately 75% of its tobacco tax revenue
toward budget shortfalls; Wisconsin devoted almost 80%; and Idaho devoted over
90%.
87

States use general revenue allocation primarily because general revenue
funds are flexible and significantly more bountiful than earmarked funds.
88
General
revenue funding of specific programs, however, requires annual or bi-annual
legislative approval and may be subject to budget cuts in economic downturns.
89

Particularly during fiscal crises, state legislators must prioritize program funding,
risking underfunding needy programs.
90
Often when tax revenue is earmarked for
specific programs, state legislators merely substitute the funds rather than
supplementing them, leaving the total funding for the program unchanged and
taxpayers feeling duped.
91

83
See Peter Suderman, Smoked Out, REASON.COM (July 6, 2011)
http://reason.com/archives/2011/07/06/smoked-out.
84
See Schroeder, supra note 80 (In exchange for the states abandonment of their suits [against
the tobacco industry], the tobacco companies awarded the states $206 billion, to be paid over a
period of twenty-five years and to be used by each state at its own discretion. After that time,
payments will continue to be based on the volume of domestic cigarette sales by the four
companies [party to the suit].)
85
See Schroeder, supra note 80 (In appropriating the approximately $1.7 billion, the MSA created
the American Legacy Foundation for public education and other tobacco-control activities.).
86
See Wood, supra note 76, at 431; see also Schroeder, supra note 80.
87
See U.S. Gov't Accountability Office, GAO-04-518, Tobacco Settlement: States' Allocations of
Fiscal Year 2003 and Expected Fiscal Year 2004 Payments 32, 36, 58 (2004), available at http://
www.gao.gov/new.items/d04518.pdf; see infra Part IV.A. (discussing earmarked funds being
diverted to state general funds in times of budgetary deficit).
88
See Stone, supra note 81.
89
See id.
90
See id.
91
See Todd A. Wyett, State Lotteries: Regressive Taxes in Disguise, 44 TAX LAW. 867, 878-79
(1991). In 1990, Ohio legislators redirected $41 million in lottery revenues from education to the
state's general fund in order to help finance the state budget deficit. Id. California state law
mandates that thirty-four cents of every lottery dollar be spent on education, but lottery funds have
simply replaced school funding rather than augmented it. Id. Florida lottery funds earmarked for
education have merely replaced general funds rather than supplementing them, which former
gubernatorial candidate Lawton Chiles declared a giant hoax on the people. Id.
192

B. Earmarked Revenue Allocation

Earmarked taxes fund specific public service programs with specific
revenues.
92
Earmarked taxes are common in United States
93
and have been used
increasingly over the past two decades. Congressional Research Service (CRS) data
revealed that the number of federal earmarks used in the United States rose 285%
from 1994 to 2005.
94
Earmarking state sales tax revenues has been steadily
increasing since 2005 as well.
95
In just one year between 2007 and 2008, the
number of sales taxes earmarked for specific purposes rose more than 3.2%.
96

Economists, however, do not agree on the effectiveness of earmarked taxes.
97

Earmarking can be a very useful tool for lawmakers. Earmarking can serve
as a means to gain public support from different groups of voters for a new tax,
specifically if voters are assured that the revenues generated will be designated to a
particular program that appeals to the general public.
98
Earmarking also allows
voters to weigh the costs and benefits of providing each proposed legislative public
service in order to prioritize efficiently.
99

Proponents argue that earmarking prevents inefficiency and corruption and
protects funded programs from shifting legislative majority interests and other
competing government needs.
100
This is particularly important when government
spending for particular areas, such as health spending, is unstable or insufficient.
101

Earmarking the revenue of a tax to a program linked to the consumption of the
particular product being taxed might also garner popular support if it is portrayed as
a user-fee.
102
The argument follows that those who choose to partake in
unhealthy habits and require services funded by tax dollars, such as smokers
general need for health services related to the negative effects of smoking, will end
up essentially paying for their own services.
103
This logic only applies to a product
or service causally linked to a program designed for prevention or recovery related
to such consumption.
Studies have shown that targeted funding is effective when sin tax revenue
funds are allocated and dedicatedly used to establish comprehensive statewide

92
See James M. Buchanan, The Economics of Earmarked Taxes, 71 J. POL. ECON. 457, 457 (1963).
93
See Andrew J. Haile, Sin Taxes: When the State Becomes the Sinner, 82 TEMP. L. REV. 1041,
1053 (2009) (citing Arturo Prez, Nat'l Conference of State Legs., Earmarking State Taxes, FY
2005, app. B at 6 (2008) (Twenty-six of forty-nine states allocated tobacco tax revenues to an
earmarked fund.)).
94
See CONG. RESEARCH SERV., MEMORANDUM, EARMARKS IN APPROPRIATIONS ACTS: FY1994,
FY1996, FY1998, FY2000, FY2002, FY2004, FY2005 (2006).
95
See Utah Taxpayers Association, State Sales Tax Earmarks Continue to Increase, 33 THE UTAH
TAXPAYER 1, 1, Feb. 2008, available at http://www.utahtaxpayers.org/wp-
content/uploads/2011/03/February-2008-Newsletter.pdf.
96
See id.
97
See Buchanan, supra note 92.
98
See Laura Marsiliani & Thomas I. Renstrom, Time Inconsistency in Environmental Policy: Tax
Earmarking As A Commitment Solution, 110 ECON. J. 123-24 (2000).
99
See id; see also Buchanan, supra note 92, at 458.
100
See Buchanan, supra note 92, at 458-59.
101
See WORLD HEALTH ORGANIZATION, TAX-BASED FINANCING FOR HEALTH SYSTEMS:
OPTIONS AND EXPERIENCES 6 (World Health Org. Discussion Paper No. 4 - 2002).
102
See JOEL MICHAEL, MINN. H.R. RESEARCH DEPT POLY BRIEF, EARMARKING ST. TAX
REVENUE 7 (2012).
103
See id.
193

public health programs.
104
For example, when implemented correctly and in good
faith, comprehensive statewide tobacco control programs have been shown to be an
effective public health intervention, decreasing cigarette consumption in both adults
and youth.
105
If revenue funding is the primary goal of a new sin tax, like the pole
tax, states must diligently enforce the earmarked tax structure in order to achieve
effectiveness and maintain funding to the specified programs.
106

Despite support for the benefits of dedicated revenue, earmarking has also
been termed a constraint to the management of fiscal policy.
107
Dedicating tax
revenue to specific funds should theoretically have no impact on the composition of
government expenditure due to tax dollar fungibility.
108
Regardless of whether
there is an earmarked state tax indication, all state taxes generate revenue into the
general fund where the money is then distributed to various government
expenditures.
109
This analysis has caused many economists to label earmarking as
irrelevant or purely symbolic.
110
Empirical data from the years 1976 to 2000
quantifying the effects of state lottery earmarking policies on educational
expenditures refutes the argument that earmarking is irrelevant.
111
The data
suggested that lottery profits earmarked for education increases education spending
by more than non-earmarked general fund dollars.
112
Tax increases earmarked to
politically popular programs usually coincide with increased government spending
for those programs and others, thus making earmarked revenue increasingly
important to maintaining justification for particular sin taxes.
113
In the same vein,

104
Cf. Michael Siegel, The Effectiveness of State-Level Tobacco Control Interventions: A Review
of Program Implementation and Behavioral Outcomes, 23 ANNU. REV. PUB. HEALTH 45 (2002)
(discussing statewide tobacco control programs in California, Massachusetts, Arizona, Florida, and
Oregon, funded by cigarette tax revenues, and particularly pointing out the success of Californias
Proposition 99, the first state in the United States to establish a statewide tobacco control program
funded by dedicated revenues from an increase in the state cigarette excise tax).
105
See id.
106
See Farrelly, supra note 80. See also Schroeder, supra note 80 (discussing the conflicting
pressures faced by states and legislators making tobacco-control policy in a time of budget
deficits).
107
Marsiliani, supra note 98.
108
See GEORGE R. CROWLEY & ADAM J. HOFFER, DEDICATING TAX REVENUE: CONSTRAINING
GOVERNMENT OR MASKING ITS GROWTH? 3 (George Mason U. Mercatus Ctr. Working Paper No.
12-17 2012) (Because tax revenues can be perfectly substituted for one another, there is no reason
to expect a dedicated or earmarked dollar to have any more of an impact on expenditures than a
general fund, undedicated dollar. In the extreme, policy makers can use an additional earmarked
dollar in place of a previously used general fund dollar, freeing that general fund dollar to be used
elsewhere. The result is no change in spending in the targeted expenditure category.).
109
See Michael L. Marlow & William P. Orzechowski, The Separation of Spending from Taxation:
Implications for Collective Choices, 8 CONST. POL. ECON. 151, 154 (1997).
110
See Garrett, supra note 77, at 221.
111
See NEVA KERBESHIAN NOVARRO, DOES EARMARKING MATTER? THE CASE OF STATE
LOTTERY PROFITS AND EDUCATIONAL SPENDING 25 (Stanford Inst. for Econ. Poly Research
Discussion Paper No. 02-19 2002).
112
See id (using data from all fifty states between 1976 through 2000). A dollar of profits
earmarked for education increases educational spending by approximately thirty-six cents more
than a non-earmarked dollar and by approximately sixty cents more than a dollar earmarked for
non-educational expenditures. Id. at 3.
113
194

earmarking is often cited as leading to increased government spending or
specifically over-spending.
114

Earmarking is criticized for severely reducing the flexibility and freedom
of public expenditures.
115
Earmarked funds are not subject to the same review
processes as general fund appropriations, which could lead to a lack of oversight,
greater influence of interest groups, and over-spending.
116
In addition, many see
earmarking as antagonistic to state and business interests.
117
The long-term trend of
taxing a specific commodity or service is that the tax revenue either remains the
same or declines, and, therefore, cannot keep up with spending needs.
118
A further
concern is that earmarking will detract from general funding already allocated to a
certain area, raising the question whether earmarked funds will complement or
replace general fund allocation to that area.
119
A study on the funding of education
in Florida suggests that earmarking lottery taxes took the same amount of funds
away from the general education budget, decreasing the percent apportioned to
education from sixty-two percent of the state general revenue in 1985 to fifty-one
percent in 1995.
120

III. Pole Tax Revenue Allocation

Taxation coupled with social programs and preventative approaches aimed
at a social sin arguably generates revenue that not only curbs consumption but funds
the very programs that make the tax so attractive. Because the pole tax departs
from the traditional sin tax structure, created not to discourage a bad behavior but
solely to raise funds earmarked for sympathetic programs in need, the earmarked
revenue plan and ultimate goal of the pole tax should be analyzed and realistically
compared to the actual results.

A.Pole Tax Revenue Goals

In 2004, Utah implemented a ten percent tax on sexually explicit
businesses and escort services on the gross receipts of each admission fee, user fee,

114
See Edwin Feulner & Alison Fraser, A Line in the Sand for Fiscally Responsible Lawmakers,
THE HERITAGE FOUNDATION (Oct. 6, 2005), http://www.heritage.org/research/reports/2005/10/a-
line-in-the-sand-for-fiscally-responsible-lawmakers.
115
See WORLD HEALTH ORGANIZATION, TAX-BASED FINANCING FOR HEALTH SYSTEMS:
OPTIONS AND EXPERIENCES 6 (World Health Org. Discussion Paper No. 4 - 2002).
116
See JOEL MICHAEL, supra note 102.
117
See Haile, supra note 93, at 1064 (discussing how the decline in use of the harmful product due
to prevention programs, for example, will also decrease the states need for revenue, illustrating the
Catch-22 of sin taxes). For example, with less smoking, there would be fewer smoking-related
illnesses and therefore less need for cigarette tax revenues to fund cessation and health programs.
Id.
118
See Rastgoufard, supra note 74 (When states rely on substantial amounts of revenues that do
not grow adequately, they develop what is known as structural deficits. If a state has a structural
deficit, it cannot support the normal year-to-year growth in its expenditures and must either reduce
spending or raise tax rates in most years even when the economy is healthy and not in
recession.).
119
See Wyett, supra note 91.
120
See Jeffrey Ball & Carrick Mollenkamp, Nov. 3 Was a Lucky Day for Advocates of Lottery,
WALL ST. J., Nov. 11, 1998, at S1.
195

retail sale of food or beverage, and any service.
121
All funds derived from the tax
are funneled into a special revenue fund, called the Sexually Explicit Business and
Escort Service Fund.
122
The fund provides specific revenue allocation in addition
to existing budgets for treatment to various categories of sex offenders.
123
Sixty
percent of the fund is used to provide treatment to post-convicted sex offenders that
are poor or unemployed; fifteen percent of the fund is used to provide treatment to
sex offenders in outpatient treatment centers; ten percent is used to implement
treatment programs for juvenile sex offenders; and fifteen percent is used to fund a
task force against internet sex crimes against children.
124
Utah lawmakers expected
the tax to generate up to $1 million per year to pay for the secondary effects of
adult entertainment.
125

The Texas pole tax, went into effect on January 1, 2008, placing a $5 fee
on strip clubs selling alcohol throughout the state.
126
Based on 2009 data, there are
175 adult cabaret clubs in Texas, of which 133 serve alcohol and forty-two have
either a beer-and-wine only license or serve no alcohol but have a bring your own
beverage (BYOB) policy.
127
A 2009 memorandum by the Bureau of Business
Research at the University of Texas at Austin predicted that between 2010-2011 the
pole tax would generate between $25 to $30 million per year.
128
The
memorandum also estimated that 2010 strip club sales would remain stagnant or
decline by two percent, which would generate approximately $27 million in revenue
in 2010 and approximately $28 million in fiscal year 2011.
129
The first $25 million
collected will be used to reimburse the sexual assault program fund,
130
and the
balance will be used to provide health benefits coverage premium payment
assistance to low-income persons.
131

Effective January 1, 2013, all of the revenue collected from the Illinois
pole tax will be directed to the Sexual Assault Prevention Fund, which will direct
money to sexual assault prevention programs and health insurance coverage for
low-income people.
132
The Illinois Department of Human Services would also
make grants from the fund to sexual assault organizations with whom the
department has contracts to provide assistance to victims of sexual assault and
prevention.
133
Illinois lawmakers expect the tax to generate $1 million annually to

121
Utah Code Ann. 59-27-103 (2012).
122
Id.
123
Id.
124
See id.
125
See Stephen Hunt, Naked Truth: Utah Wont Profit Much from Tax on Strip Clubs, SALT LAKE
TRIB. (Oct. 12, 2010, 5:30 PM), http://www.sltrib.com/sltrib/home/50460267-76/tax-utah-court-
mccullough.html.csp.
126
See Susanna Kim, Illinois Proposes $5 Skin Tax for Strip Clubs, ABC NEWS (Feb. 16, 2012,
3:24 PM), http://abcnews.go.com/blogs/business/2012/02/illinois-proposes-5-skin-tax-for-strip-
clubs/.
127
See 2009 TEXAS REPORT, supra note 13.
128
See Memorandum from the Bureau of Business Research at the University of Texas at Austin to
Scott Dudley, Legislative Budget Board, & John Heleman, Comptroller of Public Accounts (March
13, 2009), http://offthekuff.com/blog/misc/Estimates%20for%20HB%202070.pdf (Estimates are
based on full compliance.)
129
See id.
130
See TEX. BUS. & COM. CODE 102.054 (2008).
131
See TEX. BUS. & COM. CODE 102.055(a) (2008).
132
See Live Adult Entertainment Facility Surcharge Act, supra note 64.
133
See Live Adult Entertainment Facility Surcharge Act, supra note 73.
196

fund the deficit rape crisis centers have seen in annual state funding, which has
fallen from $5.8 million in 2009 to $4.6 million in 2012.
134

B. Actual Results

The Utah Tax Commission stripped the 2004 Utah nudity tax of much of
its scope when it exempted semi-nude clubs from the tax.
135
The Utah Supreme
Court also exempted escort services from the tax, which drastically reduces the
expected $1 million per year in revenue.
136
This narrow tailoring left only one strip
club, Southern Exposure, which has full nudity performances, affected by the tax.
137

Establishments displaying full nudity in Utah are already prohibited by law from
serving alcohol.
138
Because nudity in Utah law is defined as only showing
genitals or nipples,
139
clubs can easily avoid the law by having dancers wear pasties
or limited coverage.
140
Expected revenues were reduced so much that the Utah Tax
Commission was compelled to admit that the amount actually generated from the
tax would be not very much.
141

While Texas expected the five dollar per-patron strip club fee to raise over
$16.5 million in the first year to finance sexual assault prevention programs and
provide for low-income health insurance, collections totaled only $11.25 million in
2008.
142
The state had only raised $14.5 million in 2011
143
and $15.7 million in
2012.
144

The Texas legislature passed a law in 2011 creating a timeline and
structure for the collection and testing of rape kits
145
or sexual assault evidence.
146

The Texas legislature has so far tallied 15,000 untested kits.
147
There are
approximately 400,000-500,000 untested rape kits in police storage facilities and

134
Times Editorial Bd., Illinois Can Find A Better Way to Support Women, QUAD-CITY TIMES
(Aug. 21, 2012, 12:26 AM), http://qctimes.com/news/opinion/editorial/illinois-can-find-better-
way-to-support-women/article_c9b23da4-eb50-11e1-aa5e-001a4bcf887a.html.
135
See Hunt, supra note 125.
136
See id.
137
See id.
138
See Movie Pub Fined for Serving Alcohol During Hangover II, ABC4.COM (Sept. 30, 2011,
2:01 PM), http://www.abc4.com/content/news/top_stories/story/Movie-pub-fined-for-serving-
alcohol-during/KtTEJIX_D0CIObkXcrYl-w.cspx.
139
See Utah Code Ann. 17-50-331(1)(e) (2010) (Nude or partially denuded individual means
an individual with any of the following less than completely and opaquely covered: (i) genitals; (ii)
the pubic region; or (iii) a female breast below a point immediately above the top of the areola.).
140
See Hunt, supra note 125.
141
See id.
142
2009 TEXAS REPORT, supra note 13 (denoting far less than the anticipated $34 million).
143
See Suderman, supra note 83 (Confident that the law will be overturned, many club owners,
like Dawn Rizos, who runs The Lodge strip club in Dallas, have stopped paying... Ms. Rizo said
she paid more than $600,000 to the state in the laws first year. It was such a detriment to her
bottom line, she said, that she stopped.).
144
See Koppel, supra note 9.
145
See HUMAN RIGHTS WATCH, supra note 9 (According to Human Rights Watch, each year more
than 200,000 individuals report their rape to police and are asked to submit DNA evidence from
their bodies through an invasive, time-consuming process. The evidence is stored in a rape kit.).
146
See DAVIS ET AL., BILL ANALYSIS: S.B. 1636, S. RESEARCH CTR. (Sept. 7, 2011),
http://www.capitol.state.tx.us/tlodocs/82R/analysis/pdf/SB01636F.pdf.
147
197

crime labs in the United States.
148
Testing of the DNA evidence can identify an
unknown perpetrator, confirm a known assailant, corroborate the victims account
of the rape, and exonerate innocent suspects.
149

However, none of the money had been spent on sexual assault prevention
or on health insurance as the state awaited the ruling of the Texas Supreme Court on
the constitutionality of the tax.
150
It is unclear whether the revenue raised from the
pole tax thus far in Texas had been reserved for funding sexual assault prevention
centers, or whether it has flowed into the general fund. However, the Texas
Supreme Court issued an opinion in August 2011, holding that the fee does not
violate the First Amendment and remanded the case to the trial court.
151
In addition,
only about half of Texas strip clubs, more than one hundred clubs, have paid the tax
and others have paid only small amounts.
152
Clubs avoiding the tax argue that they
do not want to raise cover charges in order to keep business and dispute the link
between strip clubs and rape.
153

The pole taxes instituted in Utah, Texas, and Illinois have not yet
produced results sufficient to warrant their revenue-generating and earmarking
success. This fact has not stopped more than nineteen other state and local
politicians from proposing pole tax plans of their own.
154
Even the city of
Houston passed an ordinance requiring strip club patrons to pay a $5-per-patron
entrance fee on top of the $5-per-patron fee required by the state of Texas, affecting
thirty licensed strip clubs in the city.
155
State pole tax proposals vary in their
details, but all suggest that funds be earmarked in some way for sexual assault
victims and all proposals were in response to budget concerns during the recession.
In 2009, Georgia state legislators proposed a $3 to $5 fee on strip club patrons to
fund rehabilitiation programs for child prostitutes and sex abuse victims.
156
In
2008, Pennsylvania Senator Jane Orie proposed a ten percent tax on adult-oriented
businesses to "remediate the harm they are doing in communities."
157
Also in 2008,
Pennsylvania State Representative Paul Clymer proposed a pole tax of $5 on

148
See HUMAN RIGHTS WATCH, supra note 9.
149
See id.
150
See Makris, supra note 24; see also Sanseverino, supra note 9 (The Texas state comptroller
refused to release the funding because business owners sued, claiming the fee was
unconstitutional).
151
See Combs v. Texas Entmt Assn, Inc., supra note 68 (The fee in this case is clearly directed,
not at expression in nude dancing, but at the secondary effects of nude dancing when alcohol is
being consumed. An adult entertainment business can avoid the fee altogether simply by not
allowing alcohol to be consumed. For these reasons, we conclude that the fee is not intended to
suppress expression in nude dancing.).
152
See Matt Stiles, Strip Club Fee Barely There, HOUS. CHRON., May 17, 2009, at A1.
153
See id.
154
See Keck, supra note 56.
155
See Chris Moran, Pole Tax, Longer Terms, Plastic Bag Ban Proposed in City, HOUS.
CHRON. (Jun. 13, 2012, 10:10 PM), http://www.chron.com/news/houston-texas/article/Pole-tax-
longer-terms-plastic-bag-ban-3632563.php (First-term Councilwoman Ellen Cohn estimates that
the fee will raise $3 million per year, which would fund rape crisis centers to reduce the backlog of
more than six thousand untested rape kits.).
156
See Shannon McCaffrey, Patron Fee Mulled for Strip Clubs, ONLINEATHENS (Jan. 30, 2009),
http://onlineathens.com/stories/013009/new_382870659.shtml.
157
Gerald Prante, Pennsylvania State Senator Seeks Porn Tax, TAX FOUNDATION (Jan. 7, 2008),
http://taxfoundation.org/blog/pennsylvania-state-senator-seeks-porn-tax.
198

admissions to strip clubs to fund rape crisis centers.
158
A pole tax proposed in
California in 2009 would impose a twenty percent tax on income received from
adult entertainment venues with revenue earmarked for the Adult Entertainment
Impact Fund.
159
The fund vaguely funds costs necessary to combat the negative
secondary effects of the adult entertainment industry.
160

More recently, in 2012, California Assemblyman Das Williams proposed a
$10-per-patron entrance fee on strip clubs to broadly fund sexual assault prevention,
treatment, rape crisis centers, and victims of human trafficking.
161
Tennessee State
Senator Stacey Campfield proposed a twenty-five percent sales tax on admission to
any adult entertainment venue, escort services, and porn, which would generate
revenue for the state in place of proposed lowered taxes on food.
162
The Tennessee
porn tax bill, proposed in 2012, would also force strippers and other adult club
performers to pay a privilege tax, amounting to a $400 yearly tax on each
performer.
163
The Tennessee proposal may have been inspired by a recent tax in
Germany, which places an income tax on prostitutes in the city of Bonn by
forcing women to carry a ticket purchased from sex tax meters while working.
164

If the Tennessee plan is any indication of tax measures to come, then state sin tax
measures may soon target individual workers in the adult entertainment industry
rather than industry businesses.

IV. The Effects of the Pole Tax on New and Proposed Sin Taxes

The pole tax is a sin tax openly designed not to stop behavior but to raise
money for sorely needed program funding and state budget deficits. By packaging
the tax as a sin tax, when it is actually a general income tax,
165
the pole tax and
other emerging and proposed taxes like it, risk demonizing and potentially
sabotaging an entire industry. As a result, the pole tax has negative effects on
those victimized by the tax, including taxpayers and women working in the adult
entertainment industry. The tax is misleading to taxpayers,
166
promulgates
misleading and discriminatory stigmatization,
167
sparks noncompliance,
168
and

158
See Upper Bucks Free Press, Pole Tax Proposed for Pennsylvania Strip Clubs, YAHOO! VOICES
(Feb. 20, 2008), http://voices.yahoo.com/pole-tax-proposed-pennsylvania-strip-clubs-
1009791.html.
159
See H.R. 847, 79th Gen. Assemb., Reg. Sess. (Cal. 2009).
160
H.R. 847, 79th Gen. Assemb., Reg. Sess. (Cal. 2009).
161
See Dennis Romero, Strip Club Tax of $10 a Head Being Considered by California Legislature,
LA WEEKLY BLOG (May 15, 2012, 9:08 AM), blogs.laweekly.com.
162
See Mona Nair, Lawmaker Suggests Higher Taxes on Porn, Lower Taxes on Food, WATE (Feb.
28, 2012, 7:01 AM), http://www.wate.com/story/17031699/lawmaker-suggests-higher-taxes-on-
porn-for-lower-taxes-on-food (Some Tennessee legislators justify the tax on the belief that a higher
tax on porn may help save marriages. Lawmakers propose the porn tax as a swap in order to
lower food taxes while simultaneously instituting a tax on adult entertainment services and porn).
163
See Chris Bundgaard, Lawmakers to Introduce Bill Taxing Adult Entertainment, WKRN (Feb.
29, 2012, 1:27 AM), http://www.wkrn.com/story/17039884/lawmakers-to-introduce-bill-taxing-
adult-entertainment.
164
See Natalia Drozdiak, City Introduces Tax Meters for Prostitutes, REUTERS (Aug. 31, 2011,
11:45 AM), http://www.reuters.com/article/2011/08/31/us-germany-prostitutes-
idUSTRE77T36P20110831.
165
166
167
See Merlan, supra note 20.
199

opens the floodgates for states seeking ways to fill budget deficits with single-
purpose, general fund sin taxes disguised as earmarked sin taxes.

A. Misleading Taxpayers and Lack of Accountability

Rachel Morses article, Resisting the Path of Least Resistance: Why the
Texas Pole Tax and the New Class of Modern Sin Taxes are Bad Policy, argues
that the heightened use and increasingly broad variety of excise taxes on social sins,
including the pole tax and the new class of modern sin taxes, are bad policy
because it confuses the role of the tax system with the improper role of government
as social engineer.
169
Practically, however, as history has shown, states do not
primarily use sin taxes to rectify sinners.
170
Modern sin taxes, like the pole tax,
are levied for the purpose of generating revenue with little or no emphasis on
discouraging the sinful activity.
171
This is due to the fact that sin taxes are levied
in times of budget crisis and fiscal need,
172
and because sin tax revenues usually
funnel into the states general revenue fund. The government then uses the tax
revenue at their discretion, even if the taxes are earmarked for a specific program.
173

For example, about 64% of earmarked funds included in the 1987 Federal Highway
Bill had not been funneled to their intended projects because state officials felt other
state projects were more important.
174

National studies show that only twenty cents of every dollar raised from
tobacco tax revenue goes to their earmarked purpose of tobacco prevention.
175
Less
than one percent of tobacco taxes in Wisconsin, for instance, which raised $586.8
million in 2012, is actually spent on smoking prevention programs.
176

Massachusetts tobacco tax revenue totaled $815 million in 2012, but only $4.2
million or 0.5% was spent on state tobacco prevention and cessation programs.
177

Only five percent of the funds provided by the Master Settlement Agreement
178

intended for anti-smoking programs have been used for anti-smoking measures with
the remainder used instead for states idiosyncratic pet projects.
179
Even in states

168
See Makris, supra note 24 (Apart from consumers avoiding the tax, only 111 of 176 strip clubs
in Texas have paid the pole tax at all.).
169
Rachel E. Morse, Resisting the Path of Least Resistance: Why the Texas Pole Tax and the
New Class of Modern Sin Taxes are Bad Policy, 29 B.C. THIRD WORLD L.J. 189, 194 (2009).
170
See Rastgoufard, supra 74 (The fact that [sin] taxes also raise revenue is in theory of secondary
importance to the promotion of virtue. But revenue is never inconsequential to government in
practice.); see also Saul, supra note 74 (discussing extent to which state and federal governments
rely on revenue from taxes on tobacco).
171
172
See Rastgoufard, supra note 74, at 423; see also Saul, supra note 74.
173
See Farrelly, supra note 80. See also Schroeder, supra note 80.
174
See Rob Porter & Sam Walsh, Earmarks in the Federal Budget Process 27 (Harv. Law Sch.
Fed. Budget Poly Seminar Briefing Paper 16, 2006) (citing GAO, Highway Demonstration
Projects: Improved Selection and Funding Controls Are Needed, RCED-91-14 (May 1991)).
175
See Patrick B. Anderson, UW-L Professor Questions Effectiveness of Sin Taxes, LACROSS
TRIB. (Feb. 26, 2013, 12:00 AM), http://lacrossetribune.com/news/local/uw-l-prof-questions-
effectiveness-of-sin-taxes/article_91b5ab16-7fcf-11e2-a005-0019bb2963f4.html.
176
See id.
177
See Beverly Ford, Up in Smoke: Anti-Smoking Dollars Diverted in Massachusetts, NEW ENG.
CTR. FOR INVESTIGATIVE REPORTING, available at http://necir-bu.org/investigations/up-in-smoke-
anti-smoking-dollars-diverted-in-massachusetts/.
178
See Farrelly, supra note 80.
179
Rastgoufard, supra note 74, at 434.
200

that have attempted to remain loyal to earmarked excise taxes, recent fiscal
pressures have resulted in such funds being used for other purposes at the discretion
of the state.
180
The misappropriation of funds is likely due to budget pressures
burdening politicians but also because lawmakers like to have flexibility with
undedicated funds.
181
Studies also suggest that earmarked funding increases
spending, which is bad policy for states in financial crisis.
182
Because earmarking
usually leads to government over-spending, the pole tax earmarked for a
particular program is not likely to help government budget deficits at all.
183

Taxpayers are not only misled about where the funds are directed, but also
for what purpose the funds are being used. The extra costs to enforce the tax, the
extra work necessary to keep track of strip club activities and revenue, and the legal
fees already incurred and likely to amass defending the pole tax in court regarding
its constitutionality.
184
It is easy for proponents to argue that strip clubs need only
stop selling alcohol on the premises in order to avoid the tax. However, while
individual service workers profit almost wholly from gratuity, the clubs themselves
profit almost entirely from alcohol sales.
185
Without alcohol sales to generate profit,
clubs will either turn to other means, such as implementing or raising cover charges
or raising stage fees for their employees, or the clubs may be forced to shut down.
186

Earmarking can also be an effective way of holding politicians accountable
for their tax measures. Supporters of earmarking cite that earmarks are easily
traceable and that media and taxpayers can use earmarks to hold lawmakers
accountable for their spending.
187
This, however, cannot prevent state tax revenues
to flow into a general fund, allowing the money to be distributed at the discretion of
state government needs, regardless of earmarked spending.
188
Thus, there is no
clear evidence that earmarked pole taxes will in fact fund dedicated sexual assault
prevention programs as opposed to flowing into the general fund. If the taxes do
fund the earmarked programs, there is evidence that the amount of revenue
generated is much less than expected and needed by the programs.
189
Perhaps even
worse than the lack of success of the pole tax is that taxpayers will be fooled into

180
See Blum, supra note 15.
181
See Anderson, supra note 176.
182
See NOVARRO, supra note 111 (using data from all fifty states between 1976 through 2000). A
dollar of profits earmarked for education increases educational spending by approximately thirty-
six cents more than a non-earmarked dollar and by approximately sixty cents more than a dollar
earmarked for non-educational expenditures. Id. at 3.
183
See Edwin Feulner & Alison Fraser, A Line in the Sand for Fiscally Responsible Lawmakers,
HERITAGE FOUND. (Oct. 6, 2005, ), http://www.heritage.org/research/reports/2005/10/a-line-in-
the-sand-for-fiscally-responsible-lawmakers.
184
See Elizabeth Nolan Brown, Pole Tax Follies, AMERICAS FUTURE FOUND. (Aug. 4 2008),
http://americasfuture.org/doublethink/2008/08/pole-tax-follies/.
185
See Memorandum from Dr. Bruce Kellison, Associate Director, Bureau of Business Research at
the University of Texas at Austin to Ellen Cohen (March 13, 2009),
http://offthekuff.com/blog/misc/HB%20982%20revenue%20estimates.pdf. (Based on 2007 data
from strip clubs in Texas, mixed beverage sales, which excludes wine and beer, comprised about
72% of the total revenue generated by adult entertainment clubs. Wine and beer sales comprised
about 28% of the total revenue.)
186
See Scott Hilyard, Big Als Owner Appalled by Revised Bill to Tax Strip Clubs, PJSTAR.COM
(May 17, 2012, 8:22 PM), http://www.pjstar.com/news/x2016702916/Big-Als-owner-appalled-by-
new-bill-to-tax-strip-clubs.
187
See Porter & Walsh, supra note 169.
188
See Marlow & Orzechowski, supra note 109.
189
See, e.g., Hunt, supra note 125; Stiles, supra note 152.
201

thinking that they have overcome the problem of underfunded rape crisis centers
through implementing a tax on strip clubs when in reality, they have only
financially and stigmatically gouged an entire industry and put countless others at
risk of arbitrary taxation.
190

B. Misleading and Discriminating Stigmatization

The taxpaying public favors excise taxes that generate revenue for a
particularly purposeful and healthy or moral end.
191
While such moral ends are
not always directly linked to the sinful consumption being taxed,
192
excise taxes
are usually easier to swallow by the general population because they tax a specific
sin
193
and are often designated to fund health care,
194
education,
195
and
infrastructure projects.
196
Funds from excise taxes on particularly harmful goods,
such as tobacco, are not always designated towards any specific revenue fund.
197

However, sin tax proposals can obtain exceedingly more support when there is a
strong connection between the service or good being taxed and the fund to which
the revenue is directed as opposed to there being a small or nonexistent link.
198

190
Cf. Jacoba Urist, Could Taxing Violent Video Games Actually Save Lives?, THE ATLANTIC
(Feb. 21, 2013, 3:04 PM), http://www.theatlantic.com/business/archive/2013/02/could-taxing-
violent-video-games-actually-save-lives/273379/ (Taxing violent video games with no existing
empirical correlation to harm misleads taxpayers into believing they have cured the problem of gun
violence.).
191
See, e.g., Policy Briefing Paper: Sin Taxes, New Mexico Health Policy Commission 59 (2009)
(citing Soft Drink Taxes: A Policy Brief, Rudd Ctr. for Food Poly & Obesity (2009)) (A 2008
poll of New Yorkers found that fifty-two percent would support a soda tax, but this rose to
seventy-two percent when told the money would be used for obesity prevention.).
192
See, e.g. Garrett, supra note 77, at 220.
193
See Haile, supra note 93, at 1048 (Taxes on harmful products are generally more acceptable
because they fall on a minority of the population, users of the harmful product who voluntarily
elect to pay the tax when they purchase the product.); see also Phineas Baxandall, Taxing Habits,
13 FED. RES. BANK OF BOS. REGL REV. 19, 26 (2003) (discussing the fact that when people are
not personally affected by a tax, the less they are discontent as voters and taxpayers).
194
See Edith D. Balbach, The Implementation of Californias Tobacco Tax Initiative: The Critical
Role of Outsider Strategies in Protecting Proposition 99, 25 J. HEALTH POL. POLY & L. 689
(2000).
195
See Kana A. Ellis, Finding the Winning Numbers: State Lotteries For Education and Their
Impact on the Poor, 14 GEO. J. ON POVERTY L. & POLY 317 (2007).
196
See Matthew J. Parlow, Publicly Financed Sports Facilities: Are They Economically
Justifiable? A Case study of the Los Angeles Staples Center, 10 U. MIAMI BUS. L. REV. 483
(2002).
197
See JoAnne Allen, States Not Using New Tobacco Tax For Prevention, REUTERS (Apr. 8, 2010,
3:52 PM), http://www.reuters.com/article/2010/04/08/us-usa-smoking-taxes-
idUSTRE6374JR20100408 (All fifteen states that raised cigarette taxes in 2009 did not designate
the money to programs to cut smoking and prevent tobacco-related disease.).
198
See Ole Doetinchem, Hypothecation of Tax Revenue for Health, 51 World Health Report,
Background Paper (2010), available at
http://www.who.int/healthsystems/topics/financing/healthreport/51Hypothecation.pdf (discussing,
for example, how public support for an increase in tobacco taxation rose nearly 50% when funding
was said to be used for health or community benefits). [H]ypothecation can even generate public
support for tax increases. This, however, is highly dependent on whether the service set to benefit
from the earmarked tax is perceived to merit it. Only education and health have consistently and
across countries shown this potential. Id.
202

Pole tax proceeds are earmarked to fund sexual assault prevention
programs, including rape crisis centers,
199
despite the lack of empirical research
drawing a link between strip clubs and rape or sexual assault.
200
The pole tax
framework in Utah, Texas, and Illinois raises revenue only from adult entertainment
establishments that serve alcohol, signifying a link between alcohol consumption
and sexual violence as opposed to strip club attendance and sexual assault.
201

Critics, however, argue that there is no difference between strip clubs and other
establishments that serve alcohol in their relation to sexual violence.
202
Moreover,
Tennessees proposed pole tax would tax admission to strip clubs despite a law
that went into effect in January 2012 that prohibits strip clubs from selling
alcohol.
203
Some strip clubs owners are angered by the unfairness of the tax aimed
at strip clubs selling alcohol as opposed to all adult entertainment industry
players.
204
"It's like telling KFC, 'OK, we're going to tax you because you cause
childhood obesity, but we're not going to tax McDonald's because they have apple
slices on the menu.'"
205

The Illinois pole tax explicitly belies its intent to ameliorate the
negative secondary effects associated with the consumption of alcoholic beverages
on the premises of sexually oriented businesses.
206
However, in the same Act, the
statute also expresses that it is not intended to directly or indirectly impose
limitations or restrictions on live nude dancing, nor is it the intent of this Act to
restrict or deny access by adults to live nude dancing performances.
207
Clearly,
Illinois legislators did not implement the pole tax to inhibit strip club goers, but

199
See Koppel, supra note 9; see also HUMAN RIGHTS WATCH, supra note 9; Sanseverino, supra
note 9.
200
See 2009 TEXAS REPORT, supra note 13, at 9. See Clark-Flory, supra note 13 (Those studies
that are scientifically credible demonstrate either no negative secondary effects associated with
adult businesses or a reversal of the presumed negative effect . . . Weve done crime map after
crime map after crime map of many cities and there just arent clusters of crime around [strip
clubs].).
201
See Clark-Flory, supra note 13(Its very difficult to establish a causal link between strip clubs
and sexual violence); see also Lindsay Goldwert, Strip Clubs Must Pay Pole Tax For Rape Kits,
DAILY NEWS (June 28, 2012, 4:46 PM), http://articles.nydailynews.com/2012-06-
28/news/32461171_1_pole-tax-strip-clubs-kits (There is no known correlation between people
going to nice, high-end gentlemen's clubs and rape, said Albert Van Huff, a Houston lawyer who
represents local strip clubs). Many have criticized the pole tax and lawmakers for advocating
the belief that strip clubs owe it to rape victims since [strip clubs] create an environment that
encourages unhealthy attitudes toward women. Id. Even while denying the extreme statement that
if you walk into a strip club you become a rapist, Victoria Camp, Deputy Director of the Texas
Association Against Sexual Assault, said, "the environment that goes on at strip clubs fosters a
culture that is more tolerant, at the very least, of sexual violence." See Koppel, supra note 9.
202
See Clark-Flory, supra note 13 (Professor Linz compares other businesses that serve alcohol
with strip clubs that serve alcohol and claims they are no different.).
203
See Bianca Phillips, Strip Club Regulations to Take Effect in January, MEMPHIS FLYER (Nov.
11, 2011, 11:01 AM), http://www.memphisflyer.com/NewsBlog/archives/2011/11/11/strip-club-
regulations-to-take-effect-in-january.
204
See Scott Hilyard, Big Als Owner Appalled by Revised Bill to Tax Strip Clubs, PJSTAR.COM
(May 17, 2012, 8:22 PM), http://www.pjstar.com/news/x2016702916/Big-Als-owner-appalled-by-
new-bill-to-tax-strip-clubs.
205
Id.
206
Live Adult Entertainment Facility Surcharge Act, supra note 61.
207
Id.
203

rather to prevent negative effects resulting from strip club attendance, which is
not proven to be causally connected.
208

Pole tax earmarking schemes offended many across the United States by
insinuating the unfounded and offensive suggestion that strip-club patrons are
rapists.
209
Georgia State Senator Renee Unterman, in support of a proposed pole
tax to support rehabilitation programs for sex abuse victims and child prostitutes,
said that there are links between the adult entertainment industry and the
underground world of child prostitution.
210
Holding the adult entertainment
industry as a whole responsible, Senator Unterman continued, This is the industry
that creates the problem. Theyre financing what they created.
211
While many
sexual assault and domestic violence prevention centers are pleased with pole tax
proposals, others are worried that the tax essentially forces victims to pay for
victim services.
212
In other words, as Amber Krosel, writing for the Daily Herald,
penned, dollars intended for strippers G-strings . . . [will] be plucked away by
politicians to go to other women.
213
Vednita Carter, executive director of Breaking
Free, a support group of sexual assault victims based in St. Paul, Minnesota,
insisted, We dont need the city to become one of our biggest pimps.
214
Most
likely, legislators saw a financial need and a wealthy and politically vulnerable
sector without many legislative allies,
215
and created a sin tax that would generate
revenue for a sympathetic cause by taxing a significantly unsympathetic business,
even while not intending to curb a sinful activity.
216

Other legislators insist they merely want to create an alternate stream of
funding for a severely underfunded area of community services. Sandra Henriquez,
executive director of the California Coalition Against Sexual Assault (CALCASA)
and supporter of the California pole tax proposal, argues, Were not saying strip
clubs cause rape, but they contribute to its climate.
217
She suggests a tax on strip
clubs will bring awareness and change attitudes about the linkages between
sexually oriented businesses and sexual objectification, which is at the root of
sexual violence.
218
Other lawmakers insist on a direct link, misleading taxpayers,

208
See 2009 TEXAS REPORT, supra note 13; see also Clark-Flory, supra note 13.
209
See Glanton, supra note 52 (discussing how the pole tax could unintentionally suggest that men
are spurred to rape women after entering a strip club, despite the contention that advocates
probably didnt intend to send any kind of message and were simply trying to keep the lights on
at Illinois 32 rape crisis centers.).
210
McCaffrey, supra note 156.
211
Id.
212
Eric Roper, Club Pole Tax Plan Rouses Debate, STARTRIBUNE (Oct. 23, 2011, 7:47 AM),
http://www.startribune.com/politics/statelocal/132384688.html?refer=y.
213
Amber Krosel, Why the Taxman May be Visiting Strip Clubs, CHI. DAILY HERALD, Apr. 2,
2008, at 1.
214
Eric Roper, Club Pole Tax Plan Rouses Debate, STARTRIBUNE (Oct. 23, 2011, 7:47 AM),
215
See Associated Press, supra note 12 ("Jonathan Turley, a constitutional law expert at George
Washington University, said the Texas tax goes too far. It seems clear legislators are targeting
strip clubs because they're unpopular, . . . Laws like this would expose any unpopular industry to
punitive taxes. It could be abortion clinics.").
216
See id.
217
Shane Cohn, New Bill May Tax Strip Clubs to Pay for Rape Services, VCREPORTER (May 24,
2012),
http://vcreporter.com/cms/story/detail/new_bill_may_tax_strip_clubs_to_pay_for_rape_services/9
843/.
218
Id.
204

despite the lack of evidence suggesting a link.
219
A spokesperson for California
Assemblyman Das Williams said, There is evidence that shows a nexus between
(sexual) violence and strip club establishments
220
despite there being no scientific
evidence or hard data that suggests a link.
221
Even Judge Scott Jenkins expressed
concern with the faulty linkage, who struck down the law as unconstitutional in the
Travis County District Court in Texas.
222
He wrote: There is no evidence that
combining alcohol with nude erotic dancing causes dancers to be uninsured, that
any dancer is in fact uninsured, or that any uninsured dancer could qualify for
assistance.
223
Moreover, a 2004 study on secondary effects literature found that
rates of crime and particularly rape are correlated with nightlife facilities, such as
restaurants and clubs, but not caused by such facilities.
224

Some lawmakers have expressed other justifications for the tax that are
conflicting. Texas State Representative Elizabeth Dennigan, citing a study, claimed
that most women working in [strip clubs] stated they would rather not be working
in this industry.
225
Based on this justification, it is not clear why the industry
would need the pole tax. Some supporters suggest that strip clubs encourage
misogynistic views towards women and foster the objectification of women.
226

There is no evidence of causation of this link. In fact, the pole tax justifications
by proponents of the tax fail to recognize that sex workers are not necessarily
victims merely because of their profession. Adult entertainment workers have
chosen their occupation, and female workers have a place within the feminist
movement and a place within the rape and sexual assault prevention movement.
227

Sex workers continue to challenge patriarchal norms including sex and gender roles,
even if they dont necessarily self-identify as feminists.
228

Alarmingly, supporters have suggested that because victimized women are
generally benefited by the tax revenue proceeds, women who are victimized by the
tax itself (female nude dancers) should be more than willing to support the tax.
229

Texas State Representative Ellen Cohen, who sponsored the pole tax in Houston,
and president of a women's center that could get financing from the new law, said,
[The adult entertainment industry] is an industry that largely employs women, and
this gives them an opportunity to raise funds for a crime that affects women.
230
The
allegation that strippers are in fact victims of rape and sexual assault that the
revenue from the tax seeks to address might be well-founded. One study found that

219
See 2009 Texas Report, supra note 13.
220
Id.
221
See 2009 TEXAS REPORT, supra note 13.
222
Texas Entmt Assn, Inc. v. Combs, No. D-1-GN-07-004179, 2008 WL 2307196 (Tex. Dist.
Mar. 28, 2008).
223
Id.
224
See Brown, supra note 184.
225
See id.
226
See The Texas Pole Tax, THE ECONOMIST (Jan. 3, 2008),
http://www.economist.com/node/10431696.
227
See generally Curtis Fogel, Presenting the Naked Self: The Accumulation of Performative
Capital in the Female Strip Trade, 17 GENDER F. (2007); Sheila Hageman, Why Stripping Can Be
A Feminist Act, HUFFINGTON POST BLOG (Apr. 3, 2012, 11:00 PM),
http://www.huffingtonpost.co.uk/sheila-hageman/stripping-can-be-feminist-great-
debate_b_1310337.html.
228
Id.
229
230
See id.
205

one hundred percent of exotic dancers have been physically assaulted in clubs at
which they were employed.
231
A 2004 study found that more than half of strippers
surveyed had been threatened with a weapon.
232
These studies, however, do not
suggest causation between strip clubs and sexual assault, often confused by
politicians with correlation, nor do they suggest that victims of sexual assault should
support the tax.
Law Professor Kimberly Krawiec argues that the offense to societal
sensibilities engendered by these taboo trades is moderated through either
stigmatization . . . or through the romantic recharacterization of the transaction as
one motivated primarily by altruism, rather than by profit-seeking.
233
In other
words, the taxation and further commodification of taboo trades, like stripping or
nude dancing, for public policy purposes may embed social stereotypes and biases
regarding gender or class.
234
These detrimental effects on women working in strip
clubs affected by the tax may lead to a much needed discussion in state congresses
regarding the occupational laws of women working in the adult entertainment
industry, which is beyond the scope of this Note.
235

C. Wages, Fees, and Shallow Pockets

Increasing fees on strip club admission fees, beverage and food sales, and
other services promulgates the concern that the primarily female employees will
ultimately bear the burden of the tax. Large door fees could create a higher
expectation of the dancers, which could create a dangerous atmosphere with dancers
desperate to make up for the lost earnings.
236
There is also the concern that the fee
will be trickled down on the dancers through higher stage fees,
237
which is the
money dancers are required to pay club owners for letting them perform at their
clubs. Rick Gipprich, communications director for the Texas Association Against
Sexual Assault, insisted that dancers in the industry have not yet experienced this
trickle down effect because the fee is likely to be covered by higher entrance fees
or drink prices.
238

Unlike commodities, such as tobacco and alcohol, excise taxes on an
establishment offering services that derive a majority of income from gratuity, like
stripping and nude dancing, workers in such instances will likely face a direct
decrease in tips from patrons paying higher entrance fees.
239
Legislators, however,

231
See Ariz Anklesaria & Julie P. Gentile, Psychotherapy with Women Who Have Worked in the
Sex Industry, 9 Innovations in Clinical Neuroscience 27, 28 (2012).
232
See id.
233
Kimberly D. Krawiec, A Womans Worth, 88 N.C. L. REV. 1739, 1744 (2010).
234
See MARTHA C. NUSSBAUM, SEX AND SOCIAL JUSTICE 287-288 (1999) (challenging
commodification, coercion, and related objections to prostitution specifically, and to the sale of
bodily services more generally).
235
See, e.g., Holly J. Wilmet, Naked Feminism: The Unionization of the Adult Entertainment
Industry, 7 AM. U. J. GENDER SOC. POLY & L. 465 (1999); Carrie Benson Fischer, Employee
Rights in Sex Work: The Struggle for Dancers Rights As Employees, 14 LAW & INEQ. 521 (1996).
236
See Eric Roper, Club Pole Tax Plan Rouses Debate, STARTRIBUNE (Oct. 23, 2011, 7:47 AM),
237
Id.
238
Id.
239
See Koppel, supra note 9 (Council Member Jack Christie said When you look at videos of
these clubs and see women putting $5, $10 and $20 dollar bills in their remaining clothing, I don't
think a $5 tax will hurt anybody.); see also Associated Press, supra note 12 (Elle, a 28-year-old
206

dispel the fears that the decrease will be severe.
240
The tax could force smaller
facilities to close,
241
especially inexpensive clubs that cater to low-income clients.
Strip clubs are also affected more harshly than politicians like to reveal. While
lawmakers in support of the pole tax portray strip clubs as multimillion dollar
industries with cash to spare, strip club owners have a different story. Strip clubs
are already taxed highly, forced to the literal margins of metropolises by strict
zoning regulations, and many are already facing economic difficulty.
242
The
recession and the rise of free Internet adult entertainment has hurt strip clubs,
243

especially since people would prefer to stay home and engage in inexpensive
entertainment.
244
The pole tax could put clubs out of business, which would
affect countless industries relying on the club as clients. The loss of club revenue
will affect liquor distributors, dry cleaners, nanny services, spas, supply
companies, cleaning crews and will stifle a multi-million dollar revenue generating
industry in the state.
245

There is also the fear that dancers and other adult service industry workers
will make significantly less money at work, forcing them to turn to various other
means to make a living.
246
Opponents of the tax believe that dancers will be the

former Dallas dancer, said she worries the tax will hurt women like herself who work their way
through college by stripping.). Players, a small topless bar in Amarillo, are among other strip
clubs suing the state of Texas, claiming that an additional $5 tax to the $4 cover will drive away
patrons and force the club out of business. Id. ("They [The patrons] won't pay it," said Chandra
Brown, president of the company that owns Players. "They won't come in. They can't afford it.").
Dawn Rizos, who with her husband runs the Lodge, another strip club in Texas, said, I've already
stopped advertising, and we're raising our cover charges. But this is going to kill some of the
smaller clubs. Id.
240
241
Kurt Erickson, Lt. Gov. Simon Supports $5 Stripper Tax to Fund Sexual Abuse Programs,
DECATUR HERALD & REV. (Feb. 18, 2012),
http://www2.illinois.gov/ltgov/Pages/LtGovSimonsupports$5%27strippertax%27tofundsexualabus
eprograms.aspx (An Illinois law requiring strip clubs serving alcohol to pay a $5 tax per customer
could force smaller facilities to close, states Michael Ocelo, president of the Illinois Club Owners
Association, which represents adult entertainment establishments.); see also David Koenig, Texas
Slaps a Tax on Strip Clubs, USA TODAY, Dec. 21, 2007,
http://usatoday30.usatoday.com/news/nation/2007-12-21-2401274083_x.htm (The owners of
Players, a topless bar in Texas, say that adding a $5 tax to the $4 cover could force the club out of
business.); Associate Press, supra note 12 ("We'll be fine. I've already stopped advertising, and
we're raising our cover charges. But this is going to kill some of the smaller clubs," said strip club
owner Dawn Rizos.).
242
See, e.g., Susan Cohen, A Local Strip Club Adapts to a Changing Economy, CHARLESTON CITY
PAPER (Mar. 30, 2011), http://www.charlestoncitypaper.com/charleston/a-local-strip-club-adapts-
to-a-changing-economy/Content?oid=3227808 (discussing how, in the face of economic difficulty
since the 2008 recession, one strip club has had to host nontraditional events at their strip club to
bring in business, including music, comedy shows, and nonprofit benefits); Strip Clubs Feel
Customers Pain in Slumping Economy, TBO.COM (Aug. 12, 2009),
http://www2.tbo.com/business/breaking-news-business/2009/aug/12/strip-clubs-feel-customers-
pain-slumping-economy-ar-86981/ (discussing strip clubs struggle to bring in business).
243
Levi Chronister, Adult-entertainment industry fighting recession, Internet piracy, MCCLATCHY
- TRIB. BUS. NEWS, Jan. 7, 2011.
244
Stimulating Stimulus, ECONOMIST (Jan. 7, 2009, 7:49 PM),
http://www.economist.com/blogs/freeexchange/2009/01/stimulating_stimulus.
245
246
A recent study in the UK found that a substantial number of strippers are students. See Teela
Sanders & Kate Hardy, Students Selling Sex: Marketisation, Higher Education and Consumption,
34 BRITISH J. OF SOCIOLOGY OF EDUC. 7 (2013) (finding one-third of students were using strip
207

ones affected most by the tax.
247
Texas has both the highest percentage of hourly
workers who earn the minimum wage and highest percentage of its population that
remains uninsured in the United States.
248
Texas is also among the states with the
highest percentage of female dropout rates.
249
These statistics make it clear that
women in the state who have not graduated high school or who are uninsured could
excel financially in the adult entertainment industry.
250
Based on a history of
smuggling, black market activity, and alternative means of consumption that avoid
the sin tax,
251
strip clubs and nude dancers victimized by the tax may be forced to
work in one of these more dangerous alternatives.

D. Opening the Floodgates

Legislators risk a floodgates problem, in which almost anything
tangentially sinful in social contexts may be taxed by states looking to fill revenue
gaps during a budget crisis.
252
Without strict enforcement of earmarking schemes
for each sin tax, the tax-paying public encounters the risk of new, attenuated sin
taxes merely funneling into states general revenue funds instead of intended
earmarked funds.
253
The risk of floodgates is evident. Angelina Spencer, executive

dancing to support themselves during their studies). While no studies in the have taken place in the
U.S. on this topic, studies in the UK and Australia have found that students have resorted to
working in the commercial sex industry primarily out of financial need to pay for school and in the
wake of difficult economic situations. See JaneMaree Maher, Sharon Pickering, & Alison Gerard,
Sex Work: Labour, Mobility, and Sexual Services 45 (2013). In the United States, students are
increasingly finding sex work opportunities online to pay for college tuition and student loans. See,
e.g., A.R. Shaw, College Students Turn to Prostitution to Pay Tuition, ROLLING OUT (Aug. 4,
2011), http://rollingout.com/politics/black-college-students-turn-to-prostitution-to-pay-tuition/
(According to a report done by the Huffington Post, financially strapped female college students
are creating profiles on websites where they meet sugar daddies who can help pay off their
loans.) See also Associated Press, supra note 12. (Elle, a 28-year-old former Dallas dancer, said
she worries the tax will hurt women like herself who work their way through college by
stripping.).
247
See Brown, supra note 184 (A pole tax will usually mean the customers spend that much less
on food, alcohol, or services. Any lost revenue by club owners will be passed on to the dancers in
the form of house fees. Dancers, not club owners, will be the hardest hit.).
248
See Texas-Size Recovery, FACTCHECK.ORG, Aug. 31, 2011
(http://www.factcheck.org/2011/08/texas-size-recovery/); see also Minimum Wage Workers in
Texas 2012, Bureau of Labor Statistics, http://www.bls.gov/ro6/fax/minwage_tx.htm (last visited
Mar. 2, 2014).
249
See National Womens Law Center, When Girls Dont Graduate We All Fail: A Call to
Improve High School Graduation Rates for Girls 6 (2007), available at
http://www.nwlc.org/sites/default/files/pdfs/when_girls_dont_graduate.pdf.
250
Cf. Tim Sheehan, Economy Nudges Women in Strip-Club Dancing, TUSCALOOSANEWS.COM
(June 28, 2009, 3:30 AM),
http://www.tuscaloosanews.com/article/20090628/NEWS/906269972?tc=ar.
251
See, e.g., Nicholas K. Geranios, New Cigarette Tax Sends Smokers Packing, L.A. TIMES (Mar.
3, 2002), http://articles.latimes.com/2002/mar/03/local/me-30854 (Consumers in Washington,
where the sales tax on cigarettes is more than 8%, shop across the border in Oregon, which doesn't
have a sales tax, or buy cheaper cigarettes on Indian reservations and military bases.); see also
Jenifer Warren, Cigarette Sales Off 29% in State Since 50-Cent Tax Hike, L.A. TIMES, Sept. 14,
1999, at A3 (discussing the draw of cheaper cigarettes available in other states or Mexico for
residents of California, where cartons sell for a third of their cost).
252
See Farrelly, supra note 80; see also Schroeder, supra note 80.
253
See, e.g. Garrett, supra note 77, at 220. (Pennsylvania earmarks state lottery revenues to senior
citizen care.); Andrew H. Goodman, The Public Financing of Professional Sports Stadiums: Policy
208

director of the Association of Club Executives (ACE) said, If you tax each patron
$10 per head to enter a strip club, how long will it be before an official decides its a
great idea to tax every patron who walks into a bar to fund alcoholism recovery?
254

Constitutional law expert at George Washington University Jonathan Turkey
believes politicians are targeting strip clubs because they are unpopular. Because of
this faulty justification, he said, Laws like this would expose any unpopular
industry to punitive taxes. It could be abortion clinics.
255

The fact that lawmakers appear to be targeting strip clubs due to their
unpopular stance socially and politically produces fear of a floodgates effect.
256
As
states look towards financing budget deficits and poorly funded programs with sin
tax revenues, states are considering a broader field of services, activities, and
products to tax.
257
Targets of proposed sin taxes include everything from
pornography to bottled water.
258
Pole taxes exemplify a modern sin tax with a
singular purpose of generating revenue for a sympathetic cause, not for curbing
consumption of a certain service or good.
259
The majority of revenue that is
earmarked for sexual assault prevention programs must go to its intended
beneficiary in order to avoid losing justification and to maintain accountability.
260

While the budget crisis continues
261
and state programs are consistently
underfunded, states may not be able to resist using sin taxes in a variety of
industries in the future. However, if legislatures are allowed to use nonexistent
correlations as a justification to pass sin taxes, an infinite and limitless number of
items and services will be taxed without proper justification whenever state
legislatures need the money.
262

E. Noncompliance

One of the biggest challenges faced by governments levying sin taxes is
the ability to maintain revenue amidst a backlash of tax avoidance, evasion, and
noncompliance. Ensuring compliance and overcoming legal or illegal tax
circumvention can be costly for states to implement.
263
A prominent and
unintended consequence of unpopular and heavy sin taxes has resulted in a large

and Practice, SPORTS LAW. J. 173, 196 (2002) (Sin taxes on alcohol and tobacco have financed
sports stadiums.); Ben Domenech, Obamacare Was Almost Funded by Taxing Online Porn,
RICOCHET (Aug. 17, 2012, 9:13 PM), http://ricochet.com/main-feed/Obamacare-Was-Almost-
Funded-By-Taxing-Online-Porn (citing JOHN E. MCDONOUGH, INSIDE NATIONAL HEALTH
REFORM (1st ed. 2011)) (According to John McDonough, a professor of public health practice at
the Harvard School of Public Health, the Obama administration considered a tax on online
pornography as a source of funding for Obamacare).
254
Cohn, supra note 216.
255
256
See Reiter, supra note 7, at n. 67.
257
See States New Sin Tax Now in Effect, supra note 3; see also Rampell, supra note 2 (Several
states have considered taxes on pornography, escort services, and marijuana.).
258
See id.
259
260
261
See generally Federal Budget, TIMES TOPICS,
http://topics.nytimes.com/top/reference/timestopics/subjects/f/federal_budget_us/index.html (last
visited Mar. 10, 2013).
262
263
See WORLD HEALTH ORG., WHO TECHNICAL MANUAL ON TOBACCO TAX ADMINISTRATION
78 (2010).
209

black market for such products.
264
Such taxes also instigate users to find alternative
products or services that can be more easily abused.
265
For example, there is
evidence that a decline in cigarette consumption leads to an increase in marijuana
and other drug use.
266
The pole tax is only levied on strip clubs that serve or
allow alcohol,
267
which allows strip clubs that do not serve alcoholic beverages to
avoid the fee. In addition, strip club goers who desperately want to avoid the tax
could go to neighboring states strip clubs,
268
choose to view sexually explicit
dancing online,
269
or partake in the black market.
270
Anecdotal evidence suggests
that strippers are turning to prostitution in response to the Sexually Oriented
Business Act in Houston.
271
An informal 2009 Houston Topless Dancer Survey of
thirty-seven dancers working in medium-sized clubs found that: 92% disagreed that
strip clubs encourage criminal activity; 49% believed there was a high probability
they would quit due to the law; 87% predicted high unemployment for current strip
club dancers; and 89% predicted that the law will make it harder to earn a living.
272

The Advisory Commission on Intergovernmental Relations estimated that
states lost $391 million in cigarette revenues in 1975 and $309 million in 1983 from
smuggling and bootlegging.
273
Apart from consumers avoiding the tax, only 111 of
176 strip clubs in Texas have paid the pole tax at all.
274
Tax evasion could also
involve club owners intentionally misrepresenting the number of patrons admitted

264
See, e.g., HM REVENUE & CUSTOMS, TACKLING TOBACCO SMUGGLING BUILDING ON OUR
SUCCESS 5 (2011). (In Britain, 49% of the market on rolling tobacco is illicit.); Fatima El-Saadani,
Tobacco Taxes: A Smugglers Boon?, BUS. TODAY EGYPT (Jan. 5, 2012),
http://www.businesstodayegypt.com/article/artId:256/Tobacco-Taxes-A-Smuggler-s-Boon/secId:3
(The illicit cigarette market in the Middle East and North Africa is 10-15%, while the illicit
tobacco market in Brazil has reached 27% and over 30% in Hungary.)); Badi H. Baltagi & Rajeev
K. Goel, State Tax Changes and Quasi-Experimental Price Elasticities of U.S. Cigarette Demand:
An Update, 28 J. ECON. & FIN. 422, 424 (2004) (Two studies by the Advisory Commission on
Intergovernmental Relations (ACIR 1977, 1985) estimated that states lost $391 million in cigarette
revenues in 1975 and $309 million in 1983 from bootlegging and tax evasion.).
265
See RECENT STATISTICS AND TREND ANALYSIS OF ILLICIT DRUG MARKETS, UNODC (2010);
see also Snowden, supra note 35 (A tax on alcopops in Australia led to people mixing their own
drinks; a glaringly predictable outcome which had no effect on binge-drinking.); see also Fletcher
et al., The Effects of Soft Drink Taxes on Child and Adolescent Consumption and Weight
Outcomes, 94 J. PUB. ECON. 967, 968 (2010) (Soft drink taxes on children and adolescent
consumption and weight was offset by children switching to higher calorie whole milk and other
sweetened drinks.).
266
See RECENT STATISTICS AND TREND ANALYSIS OF ILLICIT DRUG MARKETS, supra note 262.
267
Live Adult Entertainment Facility Surcharge Act, supra note 205 (defining a live adult
entertainment facility as a a striptease club or other business that serves or permits the
consumption of alcohol on its premises).
268
See, e.g., Geranios, supra note 248; see also Warren, supra note 248.
269
Cf. Bob Tedeschi, E-Commerce Report; Pressure Grows from States to Restrict and Tax a
Smoker's Haven The Internet, N.Y. TIMES, Feb. 24, 2003, at C7; see also Pam Belluck, States
Moving to End Tribes' Tax-Free Sales, N.Y. TIMES, Sept. 28, 2003, at A24.
270
Cf. HM REVENUE & CUSTOMS, supra note 261, at 5; El-Saadani, supra note 261.
271
See Grady McAllister, VASTHEAD, http://vasthead.com/Topless/topless.htm (last visited Mar.
10, 2013).
272
See id.
273
See Baltagi & Goel, supra note 261, at 424 (2004); see also Samuel Goldreich, Cigarette Taxes
Spawn Black Market Chinese Brands Smuggled into U.S. Senators Told, WASH. TIMES, May 22,
1998, at A1 (Critics of the tobacco bill say raising cigarette taxes to discourage smoking is not
worth the price, citing the latest estimates that states already lose $1 billion to domestic cigarette
smuggling.).
274
Makris, supra note 24.
210

into the club or purposely concealing services in order to reduce their tax
obligations.
275
If fear of prosecution is minimal, enforcement is weak or
nonexistent, and penalties for noncompliance are unsubstantial, there is strong
financial incentive for strip club owners and even industry workers themselves to
engage in tax evasion.
276

There is evidence that patrons may be frequenting strip clubs subject to
the tax less than other clubs not subject to the tax and that fewer patrons are entering
clubs altogether.
277
Unsurprisingly, Texas strip clubs are reporting smaller sales
increases than strip clubs in other states without the pole tax.
278
This loss of
attendance is not surprising considering the practical alternatives and relative ease
in circumventing the pole tax.
279
In Utah, where only full nudity is taxed, dancers
need only cover their nipples and genitals with something as small as a pasty to still
be considered semi-nude under Utah law.
280
In Texas in 2009, only about half of
the clubs had paid the tax, and others had paid only small amounts.
281
More than
one hundred clubs had not paid the tax, citing reasons including the dispute of the
link between sexual assault and strip clubs, support over the challenge in Court to
the tax over First Amendment rights, and an unwillingness to raise cover charges to
keep business.
282
Frederick Harris, manager of the Gold Diggers Club in Houston,
said, Theres so much competition out here, sometimes you have to let people in
free. The bottom line is that it would put a club like ours out of business.
283

Conclusion

Sin taxes are historically justified for two primary and conflicting
purposes: halting unhealthy consumption and raising revenue for a particular or
general fund.
284
Pole taxes, however, are markedly unique because they embody
only one purpose, raising revenue to fund sexual assault prevention programs.
Because the vast majority of new and proposed sin taxes embody a single purpose
as opposed to the dual purpose sin taxes of history, the Utah, Texas, and Illinois
pole taxes represent the progression of states search for attenuated tax solutions
to their budget deficits. While earmarked sin taxes can be beneficial to legislators
trying to garner support for a tax and for programs badly in need of funding, rarely
are earmarked taxes dedicated to their intended funds.
285
This is exemplified

275
See WORLD HEALTH ORG., supra note 260.
276
See id. at 83.
277
See 2009 TEXAS REPORT, supra note 13, at 10 (The amounts of fee collections collected during
each of the four quarters of 2008 declined over the reporting periods, possibly due to less clubs
filing fee reports or fewer patrons attending the clubs.).
278
See id. This may be attributed to the fact that alcohol sales taxes collected by adult cabarets in
Texas has declined in 2007 and 2008, despite alcohol sales by non-strip-club drinking
establishments in Texas increasing in the same period. Id.
279
See, e.g., Geranios, supra note 248; see also Warren, supra note 248.
280
See Utah Code Ann. 17-50-331(1)(e) (2010) (Nude or partially denuded individual means
an individual with any of the following less than completely and opaquely covered: (i) genitals; (ii)
the pubic region; or (iii) a female breast below a point immediately above the top of the areola.).
281
See Stiles, supra note 152.
282
See id.
283
See id.
284
285
See Robert Carling, Tax Earmarking: Is It Good Practice?, THE CTR. FOR INDEP. STUDS. IX
(July 2007), http://www.cis.org.au/images/stories/policy-monographs/pm-75.pdf.
211

extensively throughout the United States by tobacco tax revenue intended to fund
anti-smoking programs, which have largely been diverted to other government
expenditures.
286
Without actual dedicated revenue allocation, the pole tax has no
purpose further than a general income tax on strip clubs.
The taxation of morally and socially sinful products and services is
traditionally used to cure bad habits and redistribute the wealth to needy parties
287

and are often justified on grounds that the behavior being taxed is socially
disapproved of and must be treated punitively in order to promote the consumers
health.
288
Neither of these rationales fit clearly within the pole tax structure.
289

The link between the social sin of attending strip clubs and the intended
beneficiaries in rape crisis centers and programs for sexual assault prevention does
not exist.
290
The pole tax causes taxpayers to be misled, promulgates stereotypes
that strip clubs are linked to rape, affects workers wages and fees, sparks
noncompliance, and opens the floodgates for states seeking ways to fill budget
deficits with single-purpose, general fund sin taxes disguised as earmarked sin
taxes.

286
See supra Part IV.A. (discussing earmarked funds being diverted to state general funds in times
of budgetary deficit).
287
Reiter, supra note 7; see also Jane Gravalle & Douglass Zimmerman, Cigarette Taxes to Fund
Health Care Reform, 47 NATL TAX J. 575, 575 (1994).
288
Id.
289
See Clark-Flory, supra note 13; see also Goldwert, supra note 201. See Koppel, supra note 9.
290
See 2009 TEXAS REPORT, supra note 13. See Clark-Flory, supra note 13.
212

DEAD MAN WALKING: THE RIGHTS OF THE DEAD UNDER 42 U.S.C.
1983 AND THE DUE PROCESS CLAUSE

Bradley Steffen
Salmon P. Chase College of Law
Northern Kentucky University

Abstract: Our country is constantly evolving and at the core of that evolution are
people fighting to advance their civil rights. Today we are seeing an evolution in
gay rights and First Amendment rights, but what about a group that lacks a voice.
What rights do dead bodies have? What happens upon the discovery that a former
employee of the morgue was engaging in sexual acts with dead bodies? Does the
immediate family have any rights? 42 U.S.C. 1983 provides parties the
opportunity to file a civil action for the deprivation of rights when there is state
action that deprived an individual of federal statutory or constitutional rights. In
order to establish a constitutional deprivation, parties must establish a violation of
their right to substantive and procedural due process. The Sixth Circuit will be
addressing a variety of these topics when it hears the appeal of Range v. Douglas,
878 F.Supp.2d 869 (S.D. Ohio 2012). This article examines the rights of dead
bodies by analyzing the holding in Range v. Douglas and analyzes how substantive
due process and procedural due process come into play. This article will draw the
line for when organizations and people violate the rights of dead bodies for a suit
filed under 42 U.S.C. 1983.

I. INTRODUCTION

Kenneth Douglas had a reputation as a ladies man,
1
but after engaging in
sexual acts with three different women, Karen Range, Charlene Appling, and Angel
Hicks, Douglas had a problem. The problem was that all three women were dead
when Douglas had intercourse with them at the Hamilton County Morgue. One was
a 19-year-old murder victim, Karen Range, who was nearly beheaded and had been
in the morgue cooler for hours when Douglas had intercourse with her body in
1982.
2
The other was a six-month pregnant murder victim, Charlene Appling, who
had been strangled to death before Douglas had intercourse with her body in 1991.
3

Douglass last victim, Angel Hicks, died of blunt force trauma due to falling from a
third-story window, after which Douglas had intercourse with her body in 1991.
4

Family members of these voiceless decedents brought claims for violation
of civil rights under 42 U.S.C. 1983 against the county coroner, director of the
county morgue, and the county.
5
Defendants moved for summary judgment arguing

1
Range v. Douglas, 878 F. Supp. 2d 869, 874 (S.D. Ohio 2012).
2
Kimball Perry, Morgue worker admits to sex with more bodies, CINCINNATI.COM, (Oct. 19,
2009), http://news.cincinnati.com/article/20091019/NEWS0107/310180016/Morgue-worker-
admits-sex-more-bodies (local newspaper article about the scandal).
3
Id.
4
Id.
5
Range, 878 F. Supp. 2d at 869 (While Plaintiffs Complaint was served on Douglas, no response
has been filed by him. Plaintiffs have not sought an entry of default. In their motion, Defendants
explain that the Hamilton County Coroners Office is not providing a defense to Douglas because
213

that the family members federal claims should be dismissed because there was no
constitutional violation.
6
However, the family members claimed that the Defendants
violated their rights to substantive and procedural due process.
7

This article will decipher when organizations and people violate the rights
of dead bodies for a suit filed under 42 U.S.C. 1983 by analyzing the ruling of
Range v. Douglas, 878 F.Supp.2d 869 (S.D. Ohio 2012), which is on appeal and
will be addressed by the Sixth Circuit. Part II of this article examines the law
surrounding dead bodies in the American courts, 42 U.S.C. 1983, and the Due
Process Clause of the Fourteenth Amendment. Part III scrutinizes the facts and
holding of Range v. Douglas. Part IV analyzes the Courts reasoning of Range v.
Douglas by examining the four cases the Court utilized to support its holding, along
with an individual analysis of Kenneth Douglass actions under 42 U.S.C. 1983.

II. BACKGROUND

A. History of Dead Body Law

Until the nineteenth century, a dead body was considered solely the subject
of ecclesiastical cognizance,
8
meaning the rules and canons of the church governed
all matters relating to the dead.
9
The English common law held that there was no
property right in a dead body.
10
With the development of medical research in the
eighteenth century, the law concerning the legal status of dead bodies
correspondingly began to develop.
11
The English Court began to prescribe penalties
for disinterment, theft, and mutilation of dead bodies.
12
However, in the American
courts, the English cases provided little guidance for a country that does not follow
ecclesiastical law.
13

A variety of rights concerning the human body exist under state law, which
have been established based upon the advancement of society.
14
These rights can be
broken down into: (1) common-law rights involving burials and autopsies; (2)
modern statutory rights concerning dead bodies, most notably the Uniform
Anatomical Gift Act and its variations; (3) rights involving parts of the body that are
no longer connected to the whole body; and (4) rights concerning living bodies.
15

The initial concern of the dead was based upon maintaining an ordered
society, whereby burial and post-burial maintenance are duties that are incumbent
upon the next of kin.
16
While there are actually no property rights in the dead body
itself, there are certain rights of dominion over a body so as to ensure that

his criminal acts were outside the scope of employment. Thus, the Opinion and Order of the Court
does not address the claims pending against Douglas).
6
Id. at 875.
7
Id. at 877.
8
Thomas McKendree Jr., Property Rights in Dead Bodies, 71 W. VA. L. REV. 377, 377 (1969).
9
see id.
10
Brotherton v. Cleveland, 923 F.2d 477, 481 (6th Cir. 1991) (citing Williams v. Williams, 20
Ch.D. 659, 665 (1882)).
11
McKendree, supra note 8 at 378.
12
Id.
13
The Nature of the Right in a Dead Body, 24 HARV. L. REV. 315 (1911).
14
Erik S. Jaffe, Shes got Bette Davis Eyes: Assessing the Nonconsensual Removal of Cadaver
Organs Under the Takings and Due Process Clauses, 90 COLUM L. REV. 528, 543 (1990).
15
Id.
16
McKendree, supra note 8 at 381.
214

mandatory duties concerning burial can be performed.
17
These rights are sometimes
described as quasi-property rights to dead bodies.
18
The first case describing
quasi-property rights was an 1872 Rhode Island case
19
that held:
There is a duty, imposed by the universal feeling of
mankind, to be discharged by someone towards the dead
and we may also say a right, to protect from violation;
and it may therefore be considered as a right of quasi-
property, and it would be discreditable in any system of
law not to provide a remedy in such as case.
20

Cases concerning human body cadavers are the primary supplement of
case law today due to the acceptance of more people being organ donors in our
society.
21
In addition, rapid advances in the medical sciences beginning in the 1950s
and in genetic engineering in the 1970s have dramatically increased the uses for and
value of bodily tissues.
22
The Uniform Anatomical Gift Act (UAGA) was designed
to simplify the laws surrounding organ donation, to clarify which persons were
authorized to grant consent for donation, and to define which circumstances
required such consent.
23
All fifty states and the District of Columbia have adopted
the UAGA or some variation of the act.
24
The UAGA has made a variety of
advances in the law of organ donation, standardizing the process and removing
some uncertainties about the scope of permissible donations.
25
The more significant
provisions of the UAGA expressly authorize donations for medical, research, and
educational purposes.
26
Thus, the UAGA gives priority to the wishes of the
deceased and sets out a prioritized list of next of kin authorized to donate where the
wishes of the deceased are unknown.
27

Finally, states have also enacted criminal statutes concerning the abuse of a
corpse in order to protect dead bodies.
28
Ohio enacted Ohio Rev. Code 2927.01,
abuse of a corpse, in which a person can be charged with a misdemeanor for treating
a human corpse in a way that the person knows would outrage reasonable family
sensibilities. The statute also provides that a person may be charged with a felony
for treating a human corpse in a way that would outrage reasonable community
sensibilities.
29
The state of Kentucky takes its abuse of a corpse statute, Ky. Rev.
Stat. 525.120, a step further by specifically providing that a person who attempts
or commits sexual intercourse or deviate sexual intercourse with the corpse may
face a felony.
30

17
Id.
18
Id.
19
Pierce v. Properties of Swan Point Cemetery, 10 R.I. 227 (1872).
20
McKendree, supra note 8 at 381 (citing Pierce, 10 R.I. at 238).
21
See Jaffe, supra note 14 at 543.
22
Jaffe, supra note 14 at 530.
23
Id. at 529.
24
Id. at 532.
25
Id. at 533.
26
Id.
27
Id.
28
See Range v. Douglas, 878 F. Supp. 2d 869, 875 (S.D. Ohio 2012).
29
OHIO REV. CODE ANN. 2927.01 (West 2013).
30
KY. REV. STAT. ANN. 525.120(2) (West 2013).
215

B. 42 U.S.C. 1983

42 U.S.C. 1983,
31
civil action for deprivation of rights, creates no
substantive rights but merely provides remedies for deprivations of rights
established elsewhere.
32
Essentially, section 1983 creates a species of tort liability
allowing persons who are deprived of rights, privileges, or immunities secured to
them by the Constitution to obtain damages.
33

Section 1983 has two basic requirements: (1) state action that (2) deprived
an individual of federal statutory or constitutional rights.
34
Only persons under
the statute are subject to liability.
35
A state is not a person subject to suit under
section 1983, but a state officer can be sued in his official capacity.
36
A suit against
a government official in his official capacity represents nothing more than a suit
against the government entity itself.
37
Unlike states, municipal corporations and
local governments are persons within the meaning of 42 U.S.C. 1983.
38

Therefore, a section 1983 action is potentially applicable to Hamilton County based
upon the actions that occurred in the morgue.
39

A party need not be a state official to have acted under color of law for
purposes of section 1983.
40
Private parties who are jointly engaged with state
officials in a prohibited action are acting under color of law if they willfully
participated in the activity.
41
The traditional definition of acting under the color of
law requires that the defendant exercise power by virtue of state law, which is made
possible by the wrongdoer being clothed with the authority of state law.
42

There must be a causal connection between the defendants actions and the
harm that results.
43
Local governing bodies may be sued directly where the alleged
unconstitutional act implements or executes a policy statement, ordinance,

31
42 U.S.C. 1983 provides: Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,
except that in any action brought against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be considered to be a statute of the District
of Columbia.
32
Range, 878 F. Supp. 2d at 876 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
33
Memphis Cnty. Sch. Dist. v. Stachura, 477 U.S. 299, 305-06 (1986).
34
Range, 878 F. Supp. 2d at 876 (citing Flint v. Ky. Dept. of Corrections, 270 F.3d 340, 351 (6th
Cir. 2001)).
35
Ian D. Forsythe, A Guide to Civil Rights Liability Under 42 U.S.C. 1983: An overview of
Supreme Court and Eleventh Circuit Precedent, Constitution Society,
http://www.constitution.org/brief/forsythe_42-1983.htm (last updated July 27, 2013) (citing Will v.
Michigan Dept. of State Police, 477 U.S. 58 (1989)).
36
Id.
37
Id.
38
Barrett v. Outlet Broad., Inc., 22 F. Supp 2d 726, 742 (S.D. Ohio 1997); see also Monell v.
Dept of Soc. Services, 436 U.S. 658, 690 (1978).
39
See Range, 878 F. Supp. 2d at 875.
40
Barrett, 22 F. Supp at 735.
41
Id.
42
See id. (citing West v. Atkins, 487 U.S. 42, 49 (1988)).
43
Forsythe, supra note 35 (citing Mt. Healthy City Sch. Dist. Bd. Of Educ. V. Doyle, 429 U.S.
272, 285-287 (1977)).
216

regulation, or decision that is officially adopted and promulgated by that bodys
officer.
44
For liability to attach, the plaintiff must establish that the municipality
engaged in a policy or custom that caused the deprivation of the plaintiffs rights.
45

This requirement is a dramatic departure from the rule of respondeat superior that
prevails in many common law actions.
46

Liability under section 1983 cannot be based on the doctrine of respondeat
superior.
47
Respondeat superior is based upon the principal that an employer is
subject to vicarious liability for a tort committed by its employee acting within the
scope of employment.
48
An employee acts within the scope of employment when
performing work assigned by the employer or engaging in a course of conduct
subject to the employers control.
49
The integrating principle of respondeat superior
is that the employer should be liable for those faults that may be fairly regarded as
risks of business.
50

For supervisory liability to attach in a section 1983 claim, the state actor
must have played more than a passive role in the alleged violation or showed more
than mere tacit approval of wrongdoings.
51
At a minimum a plaintiff must prove
that the supervising official implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct of the offending officers.
52
Liability
under 42 U.S.C. 1983 may be based only on allegations that the named defendant
encouraged the specific incident of misconduct or in some other way directly
participated in it.
53
In order to hold an individual defendant liable under section
1983, plaintiffs must offer evidence of specific acts on the part of each individual
defendant.
54
Thus, this suit may apply to the county coroner and director of the
county morgue because they have the capacity to know of or authorize the conduct
of the offending officer.
55

State and state agencies are entitled to Eleventh Amendment
56
immunity in
federal court.
57
Unlike states, municipal corporations and local governments are
persons within the meaning of 42 U.S.C. 1983 and therefore are not wholly
immune from suit.
58
However, individual defendants may be protected by qualified
immunity.
59
The doctrine of qualified immunity protects government officials
performing discretionary functions from liability for civil damages if their conduct

44
Barrett, 22 F. Supp at 742; see Monell, 436 U.S. at 690.
45
Range v. Douglas, 878 F. Supp. 2d 869, 884 (S.D. Ohio 2012) (citing Powers v. Hamilton Cnty.
Pub. Defender Commn, 501 F.3d 592, 607 (6th. Cir. 2007)).
46
Forsythe, supra note 35 (citing Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981)).
47
Range, 878 F. Supp. 2d at 884 (citing Spangler v. Wenninger, 388 Fed.Appx. 507, 512 (6th Cir.
2010)).
48
RESTATMENT (THIRD) OF AGENCY 7.07(1) (2006).
49
RESTATMENT (THIRD) OF AGENCY 7.07(2) (2006).
50
Faragher v. City of Boca Raton, 524 U.S. 775, 797 (1998).
51
Range, 878 F. Supp. 2d at 884 (citing Bass v. Robinson, 167 F. 3d 1041, 108 (6th Cir. 1999)).
52
Id. (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
53
Barrett v. Outlet Broad., Inc., 22 F. Supp 2d 726, 741 (S.D. Ohio 1997) (citing Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984)).
54
Id.
55
See Range, 878 F. Supp. 2d at 876.
56
U.S. CONST. amend. XI (The judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the United States by citizens
of another state, or by citizens or subjects of any foreign state).
57
Forsythe, supra note 35 (citing Edelman v. Jordan, 415 U.S. 651 (1974)).
58
Barrett, 22 F. Supp at 742; see Monell v. Dept of Soc. Services, 436 U.S. 658, 690 (1978).
59
Forsythe, supra note 35 (citing Harlow v. Fitzgerald, 457 U.S. 800 (1982)).
217

does not violate clearly established statutory or constitutional rights of which a
reasonable person would have know.
60
Essentially, the county coroner and director
of the county morgue could be protected in Douglass suit by qualified immunity.
61

A state actor must plead qualified immunity as an affirmative defense.
62

Immunity is a legal issue for the court to decide, even if it requires a factual
determination as to whether the defendant acted reasonably under the
circumstances.
63
Qualified immunity involves a two-step inquiry: (1) whether the
facts alleged show the officers conduct violated a constitutional right, which must
be viewed in the light most favorable to the party asserting the injury, and (2)
whether the constitutional right was clearly established.
64
Private individuals who
perform state functions and private corporations that contract with the government
may not be entitled to qualified immunity.
65
Thus, the defendants, the county
coroner and director of the county morgue, bear the burden of pleading the defense
of qualified immunity while the ultimate burden of proof is on the plaintiffs, the
family members of the decedents, to present that the defendants are not entitled to
qualified immunity.
66

C. Due Process

The Due Process Clause of the Fourteenth Amendment provides that no
State shall deprive any person of life, liberty, or property, without due process of
law.
67
The Due Process Clause serves three distinct functions: (1) it incorporates
against the States specific protections defined in the Bill of Rights, (2) it contains a
substantive component, referred to as substantive due process, and (3) it is a
guarantee of fair procedure, referred to as procedural due process.
68

Substantive due process refers to limitations on the substance of
legislation.
69
Substantive due process protects against certain government actions
regardless of the fairness of the procedures used to implement them.
70
The Supreme
Court has held that the protections of substantive due process have for the most part
been accorded to matters relating to marriage, family, procreation, and the right to
bodily integrity.
71
The Sixth Circuit has explained that substantive due process
claims can be divided into (1) deprivations of a particular constitutional guarantee
and (2) actions that shock the conscience.
72

60
Range, 878 F. Supp. 2d at 877 (citing Harlow, 457 U.S. at 818).
61
See id.
62
Forsythe, supra note 35 (citing Harlow, 457 U.S. at 815).
63
Range, 878 F. Supp. 2d at 877 (citing Behrens v. Pelletier, 502 U.S. 299, 313 (1996)).
64
Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
65
Forsythe, supra note 35 (citing McDuffie v. Hooper, 982 F.Supp. 817 (1996)).
66
Range, 878 F. Supp. 2d at 877 (citing Miller v. Admin. Office of Courts, 448 F.3d 887, 894 (6th
Cir. 2006)).
67
U.S. Const. amend. XIV, 1.
68
James W. Ely Jr., Due Process Clause, The Heritage Foundation,
http://www.heritage.org/constitution/#!/amendments/14/essays/170/due-process-clause (last visited
July 7 2013) (citing Daniels v. Williams, 474 U.S. 327, 337 (1986) (Stevens, J. , concurring).
69
Id.
70
Range, 878 F. Supp. 2d at 877 (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)).
71
Barrett v. Outlet Broad., Inc., 22 F. Supp 2d 726, 744 (S.D. Ohio 1997) (citing Albright v.
Oliver, 510 U.S. 266, 273 (1994)).
72
Range, 878 F. Supp. 2d at 877 (citing Pusey v. City of Youngstown, 11 F.3d 652, 656 (6th Cir.
1993)).
218

Procedural due process, unlike substantive due process, does not require
that the government refrain from making a substantive choice to infringe upon a
persons life, liberty, or property interest.
73
It simply requires that the government
provide due process before making such a decision.
74
To establish a procedural
due process claim, a plaintiff must establish that (1) he had a life, liberty, or
property interest protected by the Due Process Clause; (2) he was deprived of this
protected interest; and (3) the state did not afford adequate procedural rights prior to
depriving him of the property interest.
75
Although state law typically creates most
property rights, whether a substantive interest created by the state rises to the level
of a constitutionally protected property interest is a question of federal
constitutional law.
76

For constitutional purposes, it is important to differentiate between
property and liberty because the type of protection afforded depends upon which
category of rights is involved.
77
Two ancillary questions are integral to the analysis:
(1) to whom do these rights belong to and (2) against whom are they operative,
78

while keeping in mind that the ultimate characterization of those rights as
property is a matter of federal law.
79

III. Statement of Facts and Holding

A. Range v. Douglas

It is undisputed that Douglas engaged in sexual acts with the dead bodies
of Karen Range, Charlene Appling, and Angel Hicks while they were housed at the
Hamilton County Morgue.
80
Douglas was employed by the Hamilton County
Coroners Office as a Morgue Attendant from 1976 until 1992.
81
Morgue
Attendants are responsible for receiving dead bodies, inventorying personal items,
assisting in autopsies, and releasing bodies to funeral homes.
82

The Morgue Director, Bernard Kersker, supervised Douglas.
83
Throughout
his fifteen-year tenure at the Morgue, Douglas had problems with tardiness and
attendance, which Kersker had knowledge of and documented.
84
Douglas admitted
he had problems with alcohol and used cocaine in the mid-80s, which resulted in
being absent or late to work.
85
Whether management personnel knew Douglas had
a substance problem is debatable; however, Douglas testified that he drank at work

73
Id. at 881 (citing Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996)).
74
Id.
75
Id. (citing Albrecht v. Treon, 617 F.3d 890, 894 (6th Cir. 2010)).
76
Id. (citing Waeschle v. Dragovic, 579 F.3d 539, 544-545 (6th Cir. 2009)).
77
Jaffe, supra note 14 at 542 (citing U.S. Const. amends V, XIV)) (Property is protected against
both deprivation without due process and taking for public use without just compensation. Liberty
only receives due process protection.).
78
Id.
79
Id. at 547.
80
81
Id.
82
Id. at 873.
83
Id.
84
Id.
85
See id. at 873-74.
219

when he was alone on second shift and on the weekends.
86
In addition, Douglas
would also smoke marijuana before coming into work.
87

Douglas explained that he was under the influence of alcohol when he had
intercourse with the dead body of Karen Range, and was under the influence of
alcohol and cocaine when he had intercourse with the dead bodies of Charlene
Appling and Angel Hicks.
88
Douglas claims the alcohol and drugs caused him to
engage in the sexual acts with the dead bodies.
89
Douglas also used dead bodies of
other women to masturbate while intoxicated, claiming I wouldnt climb up on top
of the body, I would just put my hands on them and masturbate.
90
However,
Douglas claimed he did not engage in this type of conduct when he worked at a
funeral home.
91

In 1987 Douglass wife, Pat Chavis, called Douglass supervisor, Kersker,
and explained Douglas was coming home drunk from work.
92
Six months later,
Chavis called again telling Kersker that Douglas was still drinking at work and that
Douglas smelled like sex when he came home.
93
Chavis later testified that
Kersker responded by telling her that whatever happens on county time, on county
property, is county business and you are an insecure, jealous wife and I dont want
you to call here anymore.
94
In 1989, Chavis told Carol Maratea, Morgue
Administrator, that Douglas was having relationships and coming home smelling
like sex whereby Maratea told Chavis she would look into it.
95

In 1992, Douglas resigned from the Coroners Office; Douglas claims his
drug problem was one of the reasons he resigned.
96
However, it was not until 2008
that it was discovered that Douglas engaged in sexual acts with the dead bodies.
97

Douglas was caught when he violated his probation on a previous conviction of
drug and alcohol charges.
98
His DNA was taken by officials and placed in a
database.
99
The database showed Douglass DNA matched semen left in Karen
Ranges body.
100

Douglas pleaded guilty to gross abuse of a corpse,
101
which carries a
maximum of three years imprisonment.
102
In addition, family members of the

86
87
Id.
88
Id.
89
Id.
90
Id. at 893.
91
Id.
92
93
Id.
94
Id.
95
Id.
96
Id.
97
Id.
98
Kimball Perry, Morgue worker admits to sex with more bodies, CINCINNATI.COM, (Oct. 19,
2009), http://news.cincinnati.com/article/20091019/NEWS0107/310180016/Morgue-worker-
admits-sex-more-bodies.
99
Id.
100
Id.
101
OHIO REV. CODE ANN. 2927.01 (West 2013) provides: (A) No person, except as authorized by
law, shall treat a human corpse in a way that the person knows would outrage reasonable family
sensibilities. (B) No person, except as authorized by law, shall treat a human corpse in a way that
would outrage reasonable community sensibilities. (C) Whoever violates division (A) of this
section is guilty of abuse of a corpse, a misdemeanor of the second degree. Whoever violates
division (B) of this section is guilty of gross abuse of a corpse, a felony of the fifth degree.
220

decedents brought claims for violation of civil rights under 42 U.S.C. 1983 and
other state law claims
103
against the county coroner, director of county morgue, and
the county.
104

The Southern District of Ohio held that the family members did not
establish that Douglass supervisors, Kersker and Dr. Cleveland, violated their
substantive due process rights because the family members failed to establish a
constitutional violation.
105
The Court also found that the family members could not
maintain a claim of procedural due process against Douglass supervisors because
there is no evidence in the record that presents Kersker and Dr. Cleveland knew
Douglas was abusing the dead bodies.
106
Thus, Kersker and Dr. Cleveland were
entitled to qualified immunity on the claim.
107

As for the County, the Court found that the family members had not met
their burden of establishing deliberate indifference because they presented no
evidence of a pattern or history of Douglas or any other person engaging in sexual
acts with the dead bodies that would have caused alert for the County.
108
The Court
found the County was entitled to summary judgment on the family members
section 1983 claim.
109
The family members claims under 42 U.S.C. 1983 were
dismissed in their entirety, while a number of state law claims alleging infliction of
emotional distress remain pending.
110

IV. Analysis

A. Substantive Due Process

The descendants relatives presented two theories for finding that
Defendants violated their substantive due process rights: (1) the Coroners Office
had a duty to hold bodies placed in its custody in a safe and respectful manner,
111

and (2) the act of engaging in sexual actions with a dead body is certainly shocking
conduct.
112
The Southern District of Ohio utilized two cases that are factually
similar to this case in order to respond to the Plaintiffs theories.
113

1. Chesher v. Neyer
114

Family members of deceased relatives held at the county morgue brought
action under 42 U.S.C. 1983 against the county, employees of the morgue, and a
private photographer for permitting or engaging in the practice of posing,

102
Perry, supra note 98.
103
See Range v. Douglas, 878 F. Supp. 2d 869, 874-75 (S.D. Ohio 2012) (Intentional infliction of
emotional distress, negligent infliction of emotional distress, and negligent retention and
supervision).
104
Id. at 869.
105
Id. at 881.
106
Id. at 884.
107
Id.
108
Id. at 885.
109
110
Id. at 896.
111
Id. at 878.
112
Id.
113
Id. at 879.
114
Chesher v. Neyer, 477 F.3d 784 (6th Cir. 2007).
221

distributing, and photographing remains of their relatives.
115
The substance of the
claims rose from the discovery of at least 317 allegedly improper photographs of
dead bodies taken at the Hamilton County Morgue.
116
The photographer, Thomas
Condon, took photographs depicting dead bodies in unnatural artistic poses often
employing props for effect without the knowledge or consent of the decedents
relatives.
117

The Hamilton County Coroners Office wanted to make an autopsy-
training video for use by hospitals and law enforcement.
118
In the pursuit of making
this video, representatives from the Coroners Office met with Condon. In the
meeting, Condon mentioned that he would like to pursue an independent project of
his own involving artistic photographs of dead bodies.
119
The Coroners Office
received a legal opinion from the Hamilton County Prosecutors Office advising
that the office could produce the training video without obtaining consent of the
families of the autopsy subjects so long as the video was not used for commercial
purposes.
120
However, the Coroners office did not mention Condons personal
project and Condon was essentially given free rein to pursue his own project using
the morgue and the bodies housed there.
121
While the autopsy-training video never
came to fruition because the Coroners Office could not afford the project,
122
the
Coroners Office staff continued to permit Condon access to the morgue and to the
bodies housed there.
123

Condon photographed bodies both in the autopsy suite and in the cooler.
124

Condons photographs portrayed one body on the autopsy table with props that
included a dollhouse ladder placed against his open skull.
125
Another photograph
depicted a body with a cloth scarf placed over his eyes and an egg displayed nearby
the body.
126
Yet another photograph revealed sheet music placed on a body and a
snail near the groin area, as well as other items pressed into her hand and mouth.
127

Several of the photographs depicted the hands of morgue employees as they were
performing the autopsies.
128
Upon discovery of the photographs by the Cincinnati
Police Department, through a photo-developing studio, an investigation of the
Hamilton County Morgue followed, and the Prosecutors Office charged Condon
with eight counts of gross abuse of a corpse.
129

The defendants filed a motion for summary judgment, after which the
federal section 1983 claims where dismissed with respect to all the defendants
except the county.
130
The Chesher court found that it was clearly established that a

115
See id. at 784 (Plaintiffs also alleged state actions concerning intentional infliction of emotional
distress and engagement in a civil conspiracy).
116
Id. at 787.
117
Id.
118
Id.
119
Id. at 788.
120
Chesher v. Neyer, 477 F.3d 784, 788 (6th Cir. 2007).
121
Id. at 789.
122
Id.
123
Id.
124
Id.
125
Id. at 790.
126
Chesher v. Neyer, 477 F.3d 784, 790 (6th Cir. 2007).
127
Id.
128
Id.
129
Id. at 791.
130
Id. at 793.
222

substantive due process violation occurs where authorities permit a corpse to go
unguarded, resulting in the corpses manipulation for reasons not related to law
enforcement, medical, or governmental purposes.
131
Thus, the duty contested by the
plaintiffs was not grounded in the Due Process Clause, but was a function of state
law.
132
Therefore, the Sixth Circuit affirmed the District Courts holding, and the
section 1983 claim was not dismissed against the county, because there was a failure
to guard a corpse that was then mutilated for a reason not related to law
enforcement, medical, or governmental purposes.
133

2. Barrett v. Outlet Broadcasting, Inc.
134

Children of a suicide victim brought action under 42 U.S.C. 1983 against
the city of Columbus and members of the police department, alleging that the police
permitted a news crew to enter the victims home and film the scene of a suicide,
which was later broadcast on television.
135
The Columbus Police Department had a
ride along policy allowing civilian observers to accompany police officers while the
officers performed their duties.
136
Pursuant to the policy, a local reporter requested
to accompany a homicide detective, explaining to the detective that he was looking
for footage to connect a local news program with the NBC premiere of the
television show Homicide: Life on the Streets.
137
The reporter explained to the
Columbus Police that he would need to have unrestricted access in order to create
the story as envisioned.
138
While there was some factual dispute as to what
restrictions were actually placed on the reporter, the record confirmed that the
reporter was permitted to enter the suicide victims home.
139
Lillian Mae Smith had
committed suicide after a minor dispute with her common-law husband; she shot
her husband and then herself.
140

The news crew filmed the crime scene and the detectives reenactment of
the investigation.
141
The footage included graphic pictures of the partially dressed
body.
142
The children alleged that their mothers body and room were not in the
same condition as when the children left the scene.
143
The footage was not only
shown during news programs but also during commercial advertisements for the
continuing news series on the Columbus Homicide Squad.
144
The news segment
contained graphic pictures of the lifeless body of Ms. Smith.
145
The commercials
never mentioned the fact that the pictures depicted a suicide.
146

131
132
Id. at 878.
133
See id. at 880.
134
Barrett v. Outlet Broad., Inc., 22 F. Supp 2d 726 (S.D. Ohio 1997).
135
Id. at 726 (Plaintiffs also brought state law claims of trespass, conspiracy to commit trespass,
and intentional infliction of emotional distress).
136
Id. at 730.
137
Id. at 730-31.
138
Id. at 731.
139
140
Barrett v. Outlet Broad., Inc., 22 F. Supp 2d 726, 731 (S.D. Ohio 1997).
141
Id. at 733.
142
Id.
143
Id.
144
Id.
145
Id.
146
223

The Barrett court noted that the Sixth Circuit has described substantive due
process as prohibiting state intrusions into realms of personal privacy and bodily
security through means that are so brutal, demeaning, and harmful that they literally
shock the conscience of the court.
147
The Court held that the shocks the
conscience test was applicable to the Defendants conduct.
148
Therefore, the Court
held the children did state a claim under the Due Process Clause of the Fourteenth
Amendment and summary judgment was denied.
149

ANALYSIS SUBSTANTIVE DUE PROCESS

As previously stated, the Sixth Circuit has explained that substantive due
process claims can be divided into (1) deprivations of a particular constitutional
guarantee and (2) actions that shock the conscience.
150
While it is understandable
that a coroners office has a duty to hold bodies placed in its custody in a safe and
respectful manner, this duty does not reference a deprivation of a particular
constitutional guarantee.
151

The Chesher court established the duty of the coroners office to hold
bodies placed in its custody in a safe and respectful manner based upon an analysis
of state tort laws.
152
However, the Chesher court also establish that a substantive
due process violation occurs when authorities permit a corpse to be unguarded
resulting in its manipulation for reasons not related to law enforcement, medical, or
governmental purposes.
153
The difference between these two rules is based upon the
implementation of a state action through the association of law enforcement,
medical, or governmental purposes that provides a constitutional guarantee that is
subjected to section 1983.
154

The Supreme Court has warned, the Due Process Clause does not purport
to supplant traditional tort law in laying down rules of conduct to regulate liability
for injuries that attend living together in society.
155
In addition, the Supreme Court
rejected claims that the Due Process Clause should be interpreted to impose federal
duties that are analogous to those traditionally imposed by state tort law.
156

Essentially, the Due Process Clause is a limitation on the States power to act, not as
a guarantee of certain minimal levels of safety and security.
157
Therefore, the
Southern District of Ohio was correct in rejecting the plaintiffs theory of a
constitutional duty owed to holding bodies placed in its custody in a safe and
respectful manner because the duty did not concern a constitutional guarantee.
The defendants in Range v. Douglas did not violate the law according to
the Sixth Circuits ruling.
158
The Sixth Circuit ruled that a substantive due process

147
Id. at 744.
148
Id.
149
Id.
150
Range v. Douglas, 878 F. Supp. 2d 869, 877 (S.D. Ohio 2012) (citing Pusey v. City of
Youngstown, 11 F.3d 652, 658 (6th Cir. 1993)).
151
See Chesher v. Neyer, 477 F.3d 784, 802 (6th Cir. 2007).
152
Range, 878 F. Supp. 2d at 878.
153
Id. at 880.
154
See id. at 880.
155
Id. at 878 (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 128 (1992)).
156
Id.
157
Id. (citing DeShaney v. Winnebago Cnty. Dept of Soc. Serv., 489 U.S. 189, 195 (1989)).
158
224

violation occurs when authorities permit an unguarded corpse to be manipulated for
reasons unrelated to law enforcement, medical, or governmental purposes.
159

Douglas was hired to support the morgue by receiving dead bodies and assisting in
autopsies, which draws a distinction between Chesher and Barrett, because the
activities Douglas was hired to do are a part of state action. In Chesher and Barrett,
the state entities and supervisors authorized the activities that exceeded the state-
sponsored spectrum of law enforcement, medical, or governmental purposes.
Douglas was not hired to sexually abuse the bodies housed at the morgue, which are
outside the state-sponsored spectrum. The only way to be outside the spectrum is if
the morgue knew Douglas was engaging in these sexual interactions, because this
would then be a sponsored manipulation. However, the Hamilton County Morgue
and Douglass supervisors never knew Douglas was having intercourse with the
dead bodies. Therefore, the activity was not state-sponsored and could not violate
the Due Process Clause.
The key difference between Chesher and Barrett in comparison to Range,
is that in Chesher and Barrett there was evidence in the record indicating that the
officials knew the conscience-shocking conduct was occurring.
160
Essentially, the
officials implicitly participated in the activities and this awareness shocks the
conscience of the Court; thus, finding a violation of the Due Process Clause of the
Fourteenth Amendment was correct in those particular cases. Yet in Range, there is
no evidence in the record that the Coroners Office knew Douglas was engaging in
sexual acts with the dead bodies.
161
Therefore, the Court was correct holding that
there were not any violations of substantive due process against the morgue and the
supervisors. Consequently, the Plaintiffs claims under substantive due process
should be dismissed, because the morgue and supervisors did not deprive the
families of a particular constitutional guarantee and their actions did not shock the
conscience.

B. Procedural Due Process

In order to state a valid procedural due process claim, a plaintiff must
establish a deprivation of property interests, life, or liberty under color of state
law.
162
Therefore, the plaintiffs in Range must show a deprivation of property
interests to prevail in a procedural due process claim.
163
There are two Sixth Circuit
decisions that analyze whether family members have a property interest in a
relatives dead body under Ohio law, Brotherton v. Cleveland and Albrecht v.
Treon.
164

1. Brotherton v. Cleveland
165

Deborah Brothertons husband, Steven Brotherton, was found
unresponsive in an automobile and was pronounced dead on arrival at the

159
Id.
160
Id.
161
Id.
162
163
Id.
164
165
Brotherton v. Cleveland, 923 F.2d 477 (6th Cir. 1991).
225

hospital.
166
The hospital asked Deborah to consider making an anatomical gift,
167
a
donation of all or part of a human body to take effect after the donors death for
purposes of transplantation, therapy, research, or education.
168
Deborah declined
and her refusal was documented by the hospital.
169

Due to Stevens death being considered a possible suicide, his body was
sent to the Hamilton County Coroners Office.
170
Upon completing the autopsy, the
coroner permitted Stevens corneas to be removed and used as anatomical gifts.
171

Deborah did not learn that her husbands corneas had been removed until she read
the autopsy report.
172

The hospital made no attempt to inform the Coroners Office of Deborahs
objection and the Coroners Office did not inquire as to whether there was an
objection.
173
The Coroner removed the corneas under an Ohio statute that permitted
the coroner to remove the corneas of autopsy subjects without consent, provided
that the coroner had no knowledge of an objection by the decedent, the decedents
spouse, or the person authorized to dispose of the body.
174

Deborah filed a complaint under 42 U.S.C. 1983 alleging her husbands
corneas were removed without due process of law and in violation of the Equal
Protection Clause of the Fourteenth Amendment.
175
The Sixth Circuit examined
Ohio law and noted that Ohio had adopted the Uniform Anatomical Gift Act,
176

which expressly granted the plaintiff the right to control the disposal of her
husbands body.
177
The Court held that the policy and custom of removing the
corneas of bodies that enter the morgue by the Hamilton County Coroners office is
an established state procedure necessitating a pre-deprivation process.
178
The Court
also held that the aggregate of rights granted by the state of Ohio to Deborah rose to
the level of a legitimate claim of entitlement in Stevens body, including his
corneas, and was protected by the Due Process Clause of the Fourteenth
Amendment.
179
The Sixth Circuit reversed the District Courts holding on appeal
and remanded the case back to the District Court.
180

2. Albrecht v. Treon
181

Mark and Diane Albrechts son, Christopher, drowned after suffering a

166
Id. at 478.
167
Id.
168
OHIO REV. CODE ANN. 2108.01(C) (West 2013).
169
Brotherton, 923 F.2d at 478.
170
Id.
171
Id.
172
Id.
173
Id.
174
Range v. Douglas, 878 F. Supp. 2d 869, 881 (S.D. Ohio 2012) (citing OHIO REV. CODE ANN.
2108.60 (2013)).
175
See Brotherton v. Cleveland, 923 F.2d 477, 478-79 (6th Cir. 1991) (Claim also asserted pendent
state law claims for emotional distress).
176
OHIO REV. CODE ANN. 2108.02(B) (West 2013).
177
Brotherton, 923 F.2d at 482.
178
Id.
179
Id.
180
Id.
181
Albrecht v. Treon, 617 F.3d 890 (6th Cir. 2010).
226

seizure and losing control of the vehicle he was driving.
182
The vehicle ran off the
road and landed upside down in a retention pond.
183
Under Ohio law, the bodies of
those who die in motor vehicle accidents must undergo an autopsy; the same as
those who die violently, suspiciously, unattended, or who simply happen to be
younger than age two.
184

The coroner of Clermont County, Ohio performed an autopsy of the
Albrechts son, which required an examination of the brain.
185
In order to examine
and dissect a human brain more effectively, the jelly-like organ must be soaked in a
formal saline solution for ten to fourteen days, a process called fixing the brain.
186

Due to the lengthy process of fixing the brain, the Coroner usually returns the
remains of bodies to family members for disposition without the brain and later
destroys the brain after the examination is completed.
187

The Coroner did not inform the Albrechts that their sons brain would be
retained or that the brain was going to be destroyed.
188
The Albrechts learned that
their sons body was missing his brain when they received the autopsy report
months later, long after burying their son.
189
This realization led the Albrechts to
file suit under 42 U.S.C. 1983, claiming violation of the Due Process Clause of
the Fourteenth Amendment.
190

The Albrechts contested that Brotherton controlled their case and asserted
that they had a protected property interest in their sons discarded brain.
191

However, Brothertons relevance had been affected by Ohios adoption of the
Uniform Anatomical Gift Act, which expressly granted the next of kin the right to
dispose of a relatives remains.
192
The Sixth Circuit clarified that the Uniform
Anatomical Gift Act did not apply to the Albrechts case because the disposal of the
decedents brain was related to the right of a coroner to possess, examine, and
dispose of a corpse, not the right of the next of kin to object or consent to organ
donation.
193
The Court held that although there were no disputes as to the facts, the
Albrechts had no property interest in their sons brain and thus could not prove the
first element of a due process clause claim.
194
Thus, the Albrechts claim failed as a
matter of law, and the Court held that if state actors do not infringe on the life,
liberty, or property of the plaintiffs, there could be no due process violation.
195

The removal of the corneas in Brotherton served no investigative function
whatsoever, but the descendants brain in Albrecht was removed and retained for a
legitimate forensic study.
196
Brotherton applies only in the narrow circumstance of

182
Mark Hansen, The Body in Question, ABA JOURNAL (July 1, 2007, 6:33 PM),
http://www.abajournal.com/magazine/article/the_body_in_question/.
183
Id.
184
Id. (see OHIO REV. CODE ANN. 313.12 (West 2013)).
185
Id.
186
Albrecht, 617 F.3d at 893.
187
Id.
188
Id.
189
Id.
190
Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (Plaintiffs also brought common law state
tort claims against Defendants, over which the district court exercised supplemental jurisdiction).
191
Id. at 895.
192
Id. at 894.
193
Id.
194
Id. at 898.
195
Id.
196
Albrecht v. Treon, 617 F.3d 890, 897 (6th Cir. 2010).
227

unauthorized removal of body parts for donations and should not be expanded to
include claims by the next of kin.
197

ANALYSIS PROCEDURAL DUE PROCESS

As previously stated, in order to establish a procedural due process claim, a
plaintiff must establish that (1) he had a life, liberty, or property interest protected
by the Due Process Clause, (2) he was deprived of this protected interest, and (3)
the state did not afford him adequate procedural rights prior to depriving him of the
property interest.
198

The first issue regarding procedural due process in Range is whether
Douglass victims relatives had a property interest in the abused dead bodies. A
majority of the courts have been confronted with the issue of whether a property
interest can exist in a dead body, and have found that a property right of some kind
does exist, often referring to it as a quasi-property right.
199
The Sixth Circuit has
reviewed two Ohio court decisions that each stopped short of specifically finding a
property right in a dead body.
200
Yet, the Sixth Circuit recognizes a possessory
right to a body and allows a claim for disturbance of a body.
201
The Sixth Circuit
concluded that the aggregate of rights granted by the State of Ohio rose to the level
of a legitimate claim of entitlement in a body, protected by the Due Process Clause
of the Fourteenth Amendment.
202
Thus, the relatives have an entitlement interest
protected by the Due Process Clause to the bodies that Douglas abused.
While there is a recognized interest in a dead body in the State of Ohio and
a quasi-property right in a dead body in a majority of jurisdictions, supervisors who
are cloaked with the authority of the state as well as state entities still cannot be held
responsible under the theory of respondeat superior. For supervisory liability to
apply, the officers must have done more than play an inactive part in the alleged
conspiracy or provided an unspoken approval of the wrongdoings.
203
At a
minimum, a plaintiff must present that the supervising official at least implicitly
authorized, approved, or knowingly engaged in the unconstitutional conduct of the
offending employees.
204

The supervisors in Range did not authorize or have knowledge that
Douglas was sexually abusing the bodies. In Albrecht, a statute authorized
removing the brain in order to conduct an autopsy, while in Brotherton a statute
permitted the removal of corneas, whereby the supervisors authorized these
practices. In those particular cases, the supervisor had knowledge of the activities

197
Id.
198
Id. at 894.
199
See Brotherton v. Cleveland, 923 F.2d 477, 480 (6th Cir. 1991) (citing In re Estate of Moyer,
577 P.2d 108, 110 (Utah 1978)); see, e.g., Arnaud v. Odom, 870 F.2d 304, 308 (5th Cir. 1989),
cert.denied sub nom. Tolliver v. Odom, 493 U.S. 853 (1989) (Louisiana has established a quasi-
property right of survivors in the remains of their deceased relatives.); Fuller v. Marx, 724 F.2d
717, 719 (8th Cir. 1984) (Under Arkansas law, the next of kin does have a quasi-property right in
a dead body.).
200
Range v. Douglas, 878 F. Supp. 2d 869, 881-82 (S.D. Ohio 2012).
201
Id. at 882 (citing Caney v. Knollwood Cemetery Assn, 514 N.E.2d 430, 434 35 (Ohio Ct.
App. 1986)) and (Everman v. Davis, 561 N.E.2d 547 (Ohio Ct. App. 1989)).
202
Id. (citing Brotherton, 923 F.2d at 482).
203
See id. at 884 (citing Bass v. Robinson, 167 F. 3d 1041, 108 (6th Cir. 1999)).
204
See id. (citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
228

based on state authorizations, however; there was no unwritten rule, state statute,
procedure, policy, or custom authorizing employees to have intercourse with dead
bodies as compared to removing corneas or a brain. The morgue nor the
supervisors ever authorized an employee to have intercourse with a dead body.
Thus, the Court was correct in their dismissal of the section 1983 claims, even
though there was an entitlement interest of the bodies protected by the Due Process
Clause. Therefore, the Plaintiffs claims under procedural due process should be
dismissed because the supervisors did not authorize the conduct, and the county
never recognized the activity under any statute, procedure, policy, or custom.

C. DOUGLASS INDIVIDUAL ACTIONS AS A STATE ACTOR

The Court did not address the section 1983 claim individually filed against
Douglas because the complaint served on Douglas was never answered and the
descendants families did not seek an entry of default.
205
However, would the claim
be upheld in a court of law? Douglass conduct shocks the conscience on a moral
standpoint, but does his conduct violate the Due Process Clause?
Unauthorized intentional deprivation of property by a state employee does
not constitute a violation of the procedural requirements of the Due Process Clause
of the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss
is available.
206
In Palmer v. Hudson, a prisoner alleged that during a search of his
prison cell, a guard deliberately and maliciously destroyed some of his property.
207

The state official was not acting pursuant to any established state procedure, but was
apparently pursuing a random, unauthorized personal campaign.
208
The Supreme
Court pointed out that the State could not anticipate and control in advance random
and unauthorized intentional conduct of its employees.
209
While the state
employees conduct was intentional, the Supreme Court found that a state
employees ability to foresee the deprivation is of no consequence because the
proper inquiry is whether the state is in a position to provide a pre-deprivation
process.
210
Thus, if the state can provide an adequate post-deprivation remedy, the
due process requirements will not be violated.
211

Douglass sexual abuse of the dead bodies resulted from his own personal,
unauthorized agenda. His personal agenda had nothing to do with established state
procedure. Property interests were deprived because dead bodies are considered to
provide a quasi-property right or entitlement interest to the next of kin. Douglas
was an employee of the state morgue at the time of the incident, but the harm
inflicted was not by the state entity, but by Douglas himself.
The claim in Range is based upon the Due Process Clause of the
Fourteenth Amendment, which does not transform every tort committed by a state
actor into a constitutional violation.
212
A state may, through its courts and
legislatures, impose such affirmative duties of care and protection upon its agents as
it wishes, but the Fourteenth Amendment does not govern all common-law duties

205
Id. at 875.
206
Palmer v. Hudson, 468 U.S. 517, 533 (1984).
207
Id. at 534-35.
208
Id. at 521.
209
Id. at 533.
210
Id. at 534.
211
Id.
212
DeShaney v. Winnebago Cnty. DSS, 482 U.S. 189, 202 (1989).
229

owed by government actors.
213
The descendants relatives could potentially resort
to Ohios courts and legislature. While the people of a state may well prefer a
system of liability that would make the state and its officials responsible for failing
to act in a situation like Range, the Supreme Courts expansion of the Due Process
Clause should not be thrust upon states.
214

Thus, a tort remedy in the state court that the family relatives could pursue
on Douglas individual actions would be sufficient to satisfy the rule requiring an
adequate post-deprivation remedy. If a tort remedy is not available at the current
time, natural sympathy moves judges or lawyers in a case like this to find a way for
the victims to obtain adequate compensation for the grievous harm inflicted upon
them.
215
Therefore, if the Southern District of Ohio addresses this individual
section 1983 claim against Douglas, the claim should be dismissed because a state
tort could provide a sufficient remedy for Douglass actions.

CONCLUSION

If a dead body is violated, the dead body cannot file suit. The voiceless
victim is dependent on a closely related family member. However, the family
member can only file a civil suit for violations against the dead body if a property
interest exists in the body. The interest in the dead body will be a quasi-property
right in the majority of jurisdictions or a claim of entitlement based upon the
minority viewpoint. The relative may file a civil rights suit under section 1983 for
deprivation of rights by a state entity. If a state entity is not involved in the
violation of the dead body, however, the family member must resort to tort remedy
to obtain justice.
If a state entity is involved in the action, three key rules are clear. First, a
state entity will be liable in a section 1983 claim if the entity sponsors a policy or
custom that deprives an individual of a particular constitutional guarantee that
shocks the conscience. Secondly, a supervisor will be liable in a section 1983 claim
if they have knowledge of the conscience-shocking event and do nothing about the
action. Finally, it is very difficult to find an individual state actor liable in a section
1983 claim for independent unauthorized conduct because the independent conduct
does not trigger the Due Process Clause, and states will honor a tort claim in order
to provide post-deprivation remedies for the families. Therefore, the Sixth Circuit
should affirm the ruling of the U.S. District Court for the Southern District of Ohio
in Range v. Douglas, which granted the Defendants Motion for Summary
Judgment for the claims under 42 U.S.C. 1983.

213
Id. at 203.
214
Id.
215
Id. at 202.

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