Bargaining for Religious Accommodations: Same-Sex Marriage and LGBT Rights After Hobby Lobby

 

In the deep and sustained blowback over Burwell v. Hobby Lobby Stores, nothing has figured more prominently than the case's meaning for civil rights. The same day the U.S. Supreme Court announced its decision, Stanford professor Richard Thompson Ford observed that "some religions advocate anti-gay bias...

Continue reading


Demystifying Hobby Lobby

 

The Unites States Supreme Court's controversial decision in Burwell v. Hobby Lobby Stores ('Hobby Lobby') has caused great consternation for many and elation for others. As badly misunderstood outside the United States as it is within, the decision interprets the federal Religious Freedom Restoration Act (RFRA)...

Continue reading


Embracing Compromise: Marriage Equality and Religious Liberty in the Political Process

 

This essay draws on a series of letters co-authored by one of us (RFW) that urge the inclusion of robust religious liberty exemptions in same-sex marriage laws, work that has been done in tandem with two groups of scholars. See infra note 20 (listing signatories on both sets of letters and citing model exemptions). It also...

Continue reading


Insubstantial Burdens: The Case for Government Employee Exemptions to Same-Sex Marriage Laws

The case for accommodating religious objectors to same-sex marriage has met significant resistance on a number of fronts. Some believe that religious exemptions permit objectors to dodge legal duties to serve same-sex couples that would otherwise...

Continue reading


Religious Liberty After Hobby Lobby: A Panel of the 2014 Federalist Society National Lawyers Convention

The following remarks were given on November 14, 2014 during a panel of the 2014 Federalist Society National Lawyers Convention. The focus of the discussion revolved around the recent Supreme Court decision in Burwell v. Hobby Lobby. The discussion included such topics as the impact that Hobby Lobby...

Continue reading


The Calculus of Accommodation: 
Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State

This Article considers a burning issue in society today—whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The "political maelstrom: over the Obama administration's sterilization and contraceptive coverage mandate is just one of many clashes between...

Continue reading


The Overlooked Costs of Religious Deference

In March of 2007, Der Spiegel reported that a German divorce court judge denied a fast-track divorce based on hardship to a German citizen of Moroccan origin who has been the victim of domestic violence and death threats from her spurned husband. In rejecting the...

Continue Reading


When Governments Insulate Dissenters from Social Change: What Hobby Lobby and Abortion Conscience Clauses Teach About Specific Exemptions

After the U.S. Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., two great civil rights battles of our time — the extension of marriage to same-sex couples and women's access to reproductive services — are firmly linked in the public's mind. In Hobby Lobby...

Continue reading


The Politics of Accommodation: The American Experience with Same-Sex Marriage and Religious Freedom

In war, litigation, and even the legislative process, parties go to battle when they fundamentally underestimate the other side's strength. Armed with a more realistic view of a rival's strengths, the same parties will sometimes come to the bargaining table, with. renewed appreciation for the advantages of...

Continue reading


Many people reflexively accept or reject healthcare conscience protections. Those prizing religious freedom argue that conscience protections ensure that religious believers can both take jobs in medicine and act consonant with their faith. This group sometimes gives short shrift to concerns about access to needed...

Continue reading


Privatizing Family Law in the Name of Religion

In pockets across the world, a movement has quietly taken hold to allow fundamentalist religious norms, rather than state law, to govern family matters like divorce and inheritance. Many of these religious norms depart significantly from the state’s background rules protecting individuals. Nonetheless, fundamentalist...

Continue reading


Marriage of Necessity: Accommodation Same-Sex Marriage and Religious Liberty Protections

Since the U.S. Supreme Court heard oral arguments in Hollingsworth c. Perry and U.S. v. Windsor, the number of states recognizing same-sex marriage exploded. Even though the Supreme Court "stopped short of deciding whether the Constitution guaranteed a right to same-sex marriage," the Court's basic vindication of... 

Continue reading


The Perils of Privatized Marriage

Governments around the world continue to struggle with how to accommodate religious minorities in an increasingly pluralistic society. In February 2008, the Archbishop of Canterbury called for a "plural jurisdiction" in which Muslims could choose to resolve family disputes in religious tribunals or in British... 

Continue reading


Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context

It is difficult to ignore the parallels emerging between same-sex marriage and the recently renewed debates about the limits of conscience in healthcare, sparked by refusals to dispense emergency contraceptives. Both subjects are deeply divisive, and in both, persons of good will are saying "why should I have to give up my... 

Continue reading


Squaring Faith and Sexuality: Religious Institutions and the Unique Challenge of Sports

In 2014, the Minnesota Vikings released punter Chris Kluwe from the team for, in his words, his "activism for same-sex marriage rights." Imagine instead that Kluwe was kicked off the team while playing college football at one of the more than 1000 religious universities and colleges in the United States. And imagine that the...

Continue reading


Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT Rights

Until the U.S. Supreme Court’s denial of certiorari on October 6, 2014,1 which made same-sex marriage decisions in three federal Circuit Courts of Appeal authoritative,2 the voluntary embrace of same-sex marriage by state legislatures and voters accounted for marriage equality in more than half of the U.S. ...

Continue reading


The Nonsense About Bathrooms: How Purported Concerns over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns

Although Americans overwhelmingly believe that LGBT people should not be turned away from a business open to the public just for being gay or transgender, no state has enacted protections for all LGBT people against being told that “we don’t serve people like you.” This Article traces the impasse over...

Continue Reading


'Getting the Government Out of Marriage' Post Obergefell: The Ill-Considered Consequences of Transforming the State’s Relationship to Marriage

To say after U.S. Supreme Court’s landmark decision extending the right to marry to same-sex couples that the simmering dispute over marriage turned into a “raging inferno” would be an understatement. Within hours of Obergefell v. Hodges, Texas Senator Ted Cruz called its release “some of the darkest 24 hours in our...

Continue Reading