The Administrative State as a New Front in the Culture War: Little Sisters of the Poor v. Pennsylvania
Culture-war clashes, like that in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, are now routinely decided by the United States Supreme Court. Despite the clear need for lawmaking that puts predictable culture-war fights to rest . . .
By Faith Alone: When Religious Beliefs and Child Welfare Collide
How to discipline one’s child, like decisions to treat “by faith alone,” run deep in religious and cultural belief systems. State regulation of child rearing not only impacts parents’ liberty but a community’s ability to maintain identity . . .
Prospects for Common Ground: Introduction, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground
This introduction to Religious Freedom, LGBT Rights, and the Prospects for Common Ground--a groundbreaking volume of leading voices in the faith and LGBT advocacy communities, equality and religious liberty scholars, and legislative stakeholders . . .
Bathrooms and Bakers: How Sharing the Public Square Is the Key to a Truce in the Culture Wars in Religious Freedom, LGBT Rights, and the Prospects for Common Ground
In most of the US, access by LGBT persons to public places follows a red/blue fault line. In twenty-nine red states, businesses can tell LGBT people to get out, with impunity. In twenty-one blue states, nondiscrimination laws predating marriage equality, written without marriage in mind . . .
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...
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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)...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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...
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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...
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. ...
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...
'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...