BOSTON COLLEGE
Boston College Third World Law Journal

Student
Publications

Volume 22 2002 Number 1

[Pages 1-66]
ENDA BEFORE IT STARTS:SECTION 5 OF THE FOURTEENTH AMENDMENT AND THE AVAILABILITY OF DAMAGES AWARDS TO GAY STATE EMPLOYEES UNDER THE PROPOSED EMPLOYMENT NON-DISCRIMINATION ACT
William D. Araiza*

Abstract:  The United States Supreme Court’s recent decision in Board of Trustees of the University of Alabama v. Garrett further circumscribed Congress’ power to enforce the Fourteenth Amendment. The Court’s recent decisions in this area insist that enforcement legislation be congruent and proportional to the constitutional violations sought to be remedied. The specter of reduced leeway for congressional enforcement authority requires Congress to approach such federal legislation carefully. The Employment Non-Discrimination Act (ENDA), proposed legislation prohibiting sexual orientation discrimination in employment, provides an interesting case study of the Court’s recent Section 5 jurisprudence. This Article, after outlining historic and current Section 5 standards, uses Garrett as a guide to examine whether the Supreme Court would uphold ENDA’s provision allowing state employees to sue their employers for certain types of retrospective relief. The Article both argues that ENDA is a valid expression of Congress’ Section 5 power and provides strategies for navigating the increasingly narrow confines of Fourteenth Amendment enforcement power to provide critical employment protections.

[Pages 67-98]
FOR WHITE WOMEN: YOUR BLUES AIN'T LIKE MINE, BUT WE ALL HIDE OUR FACES AND CRY-LITERARY ILLUMINATION FOR WHITE AND BLACK SISTER/FRIENDS Based on Bebe Moore Campbell's novel, Your Blues Ain't Like Mine
Angela Mae Kupenda*

Abstract:  This essay is an experiment, seeking to facilitate honest and less defensive discussion about race and gender. Generally, discussions of race, gender and the law are difficult, but perhaps, the discourse can be facilitated through the lens of literature. My theory is that women are unable to claim a position of power because of divisive racial conflicts. I approach these conflicts by examining the conflict between two literary characters (a black woman and a white woman) in Bebe Moore Campbell’s novel, Your Blues Ain’t Like Mine. Directly examining the characters illuminates the racial divide between black and white women existing in our real lives and systems. This experiment is essential because as long as women, potential sister/friends, remain alienated from one another—which is also an alienation from self—they will never fully actualize their power and reorder oppressive societal and legal orders.

[Pages 99-162]
THE FORGOTTEN FEW:CAMPAIGN FINANCE REFORM AND ITS IMPACT ON MINORITY AND FEMALE CANDIDATES
Jason P. Conti*

Abstract:  Campaign finance reform attracts intense political, academic, and media attention. The debate swirling around the McCain-Feingold legislation in 2001 is evidence of the power of the issue. Despite the intensity of the spotlight, commentators and politicians often overlook an important element of any proposed reform: diversity. This Note explores campaign finance reform from an under-explored angle: the impact proposed reforms would have on minority and female candidates. This Note explores the woefully inadequate diversity of representation in elective office and critiques numerous proposals for change from the perspective of a prospective minority or female candidate. This Note concludes that in order for the diversity of those holding elective office to better reflect the diversity of the nation as a whole, reformers must take the concerns of minority and female candidates into account and must institute publicly funded campaigns.

[Pages 163-200]
"HUMANITY ON THE BALLOT":THE CITIZEN INTIATIVE AND OREGON'S WAR OVER GAY CIVIL RIGHTS
Elizabeth A. Tedesco*

Abstract:  The citizen initiative, a form of “direct democracy” by which citizens both draft and enact their own law, is often described by its supporters as the truest and most representative form of democratic government. As Constitutional framers recognized by the creation of the Guarantee Clause, however, the pure expression of the people’s will must always be tempered by legislative compromise and judicial constraint. Unchecked, individual voters’ fears and private biases come to be memorialized as state code and as constitutional amendments. In this Note, the author highlights the discriminatory nature of the citizen initiative process both generally, and as it targets gay men and lesbians in cities and states across America. Particular attention is paid to the situation of gay men and lesbians in Oregon, where a series of failed citizen initiatives has nonetheless succeeded in creating a climate of hostility and intolerance. The author urges the Supreme Court to accept jurisdiction in cases where citizen initiatives target minority rights, upholding a constitutional scheme that explicitly favors representative state government.

[Pages 201-223]
LEGAL AND NON-LEGAL RESPONSES TO CONCERNS FOR WOMEN'S RIGHTS IN COUNTRIES PRACTICING FEMALE CIRCUMCISION
Erin L. Han*

Abstract:  Ute Gerhard’s book, Debating Women’s Equality, emphasizes the continuing importance of equality to the women’s rights movement. Gerhard tackles the feminist equality-versus-difference debate and concludes that both concepts are vital to women’s efforts to achieve status that is both equal with men but uniquely female at the same time. She directs her theories to the feminist movements in Europe, and concludes that women must primarily use law to claim their rights. This Book Review tests the applicability of Gerhard’s Western feminist theories to the anti female circumcision movements in Africa, and particularly focuses on the limitations of law as a method for claiming women’s rights in circumcising communities. Through this analysis, this Review illustrates the limited applicability of Western feminism to the experiences and goals of African feminists and suggests alternate, non-legal approaches to eradicate the practice of female circumcision in Africa.