In 2006, an Albuquerque photographer declined to photograph a same-sex wedding, citing religious objections. The couple sued her for discrimination and won. Cases like this one present a conflict between gay rights and religious liberty. Religious conservatives feel that it would be sinful for them to personally facilitate same-sex marriages, and they have sought to amend the laws to accommodate their objections. These efforts have met fierce resistance. In Arizona, the only state where a legislature has passed a religious accommodation law, the governor vetoed it in response to enormous national public pressure.
The resistance is largely unnecessary. Gay rights advocates have misconceived the tort of discrimination as a particularized injury to the person, rather than the artifact of social engineering that it really is. Religious conservatives likewise have failed to grasp the purposes of antidiscrimination law, and so have demanded accommodations that would be massively overbroad.
When Vanessa Willock emailed Elane Photography seeking information about photography services for her upcoming commitment ceremony, she was likely expecting a run-of-the-mill response—pricing information, samples of prior work, a discussion of the photographer’s availability for the date in question. She was not expecting Elaine Huguenin, a co-owner of Elane Photography, to refuse the commission outright on the ground that she “[did] not photograph same-sex weddings.” Likewise, when Charlie Craig and David Mullins entered Masterpiece Cakeshop in Lakewood, Colorado to order a cake for a party celebrating their Massachusetts marriage, they probably were not expecting the owner, Jack Phillips, to refuse their business because his religious convictions prevented him from making cakes for same-sex weddings.
The increasingly apt term “culture wars” refers to a polarizing tendency in which Americans are coming to coalesce around opposing political agendas that themselves murkily reflect divergent conceptions and evaluations of individualism, community, equality, authority, tradition, sexuality, Christianity, and the meaning and mission (if any) of America. At the moment, the controversy over same-sex marriage is the most fiercely contested political and cultural battle, but the intensity of that particular battle is likely due in part to the fact that same-sex marriage is only one salient issue within a larger struggle.
In late November, shortly after the Supreme Court granted certiorari in Burwell v. Hobby Lobby, Linda Greenhouse published a perceptive op-ed arguing that the contraceptive mandate cases “aren’t about the day-in, day-out stuff of jurisprudence under the First Amendment’s Free Exercise Clause,” and they aren’t about the rights of corporations either. Instead, she said, “They are about sex.”
In response to which I want to say yes, they’re about sex. And they’re about religion. But they’re also about money. They’re about sex, God, and money. Since sex and God have both gotten a lot of attention already, I’m going to focus on the money.
A new generation of social science research creates new opportunities to increase fairness and reduce racial inequality in education. This research raises important questions for antidiscrimination law.
Over the past twenty years, research conducted around the world has established that for students subject to pervasive negative intellectual stereotypes, such as African American and Latino students (and many other groups, including, in math and science, girls and women), school contexts that call to mind these stereotypes can produce distraction and anxiety that impede school achievement and contribute to racial disparities. This “stereotype threat” is the default in evaluative, challenging academic environments. Hence, common measures of intellectual ability typically underestimate minority students’ potential. But stereotype threat is not inevitable. Brief exercises can reduce its effects, causing lasting improvements in minority student achievement.
Claudia, a Mexican American with family roots in the United States since the mid-1800s, walked out of a grocery store, happily chatting with her three young children in Spanish as they walked toward her car. Before arriving at her car, she was stopped by government officials and asked for proof of citizenship. Speaking to the officers in accent-free English, she explained that she is in fact a United States citizen, offering her driver’s license as proof. After rejecting her driver’s license, the officers requested another form of identification as proof that she was in the United States legally. Eventually, Claudia gave the officers something that satisfied them, and they allowed her to continue with her children to her car. After the event, Claudia wondered what she might do in the future to avoid being stereotyped as an “undocumented Mexican.”
When the Supreme Court rules on matters of statutory interpretation, it does not establish “methodological precedents.” The Court is not bound to follow interpretive practices employed in a prior case even if successive cases concern the same statute. Instead, the Court’s interpretive practices may change without warning or explanation, and at times they do so as part of a broader transition between interpretive regimes independently of any substantive change to the statute interpreted. Stare decisis appears to require no justification for changes in the Court’s interpretive practices. This is striking because abrupt changes in the interpretive practices applied to a statute have the power to disrupt the consistency and predictability of a statute’s enforcement and the rationality of its design.
In late 2011, the New York City Police Department (“NYPD”) made national and international headlines when its secret surveillance of Muslims across the New York City area was discovered. Under the guise of counterterrorism, the NYPD monitored the daily lives of thousands of Muslims for about a decade, using techniques such as taking photographs, collecting license plate numbers at mosques, and utilizing informants known as “mosque crawlers” to infiltrate Muslim organizations. From recording sermons to monitoring businesses and grade schools, the NYPD targeted individuals not because of a reasonable suspicion that they specifically were linked to terrorism, but rather because of one common characteristic: they were or were believed to be Muslim.
Insurance companies are in the business of discrimination. Insurers attempt to segregate insureds into separate risk pools based on the differences in their risk profiles, first, so that different premiums can be charged to the different groups based on their differing risks and, second, to incentivize risk reduction by insureds. This is why we let insurers discriminate. There are limits, however, to the types of discrimination that are permissible for insurers. But what exactly are those limits and how are they justified? To answer these questions, this Article (a) articulates the leading fairness and efficiency arguments for and against limiting insurers’ ability to discriminate in their underwriting; (b) uses those arguments to identify a set of predictions as to what one would expect state antidiscrimination laws to look like; and (c) evaluates some of those predictions against a unique hand-collected dataset consisting of the laws regulating insurer risk classification in all fifty-one U.S. jurisdictions. Among our findings is that, contrary to the conventional wisdom, state insurance antidiscrimination laws vary a great deal: in substance and in the intensity of regulation, across lines of insurance, across policyholder characteristics, and across states. The Article also finds that, contrary to our own predictions, a surprising number of jurisdictions do not have any laws restricting insurers’ ability to discriminate on the basis of race, national origin, or religion.
The Supreme Court has declared that children should not be penalized based on the circumstances of their birth. In the context of assisted reproductive technology (“ART”), however, parentage provisions that apply only to children born to heterosexual married couples continue to be the rule rather than the exception. Many of the policymakers resisting the calls for reform have been influenced by the debate currently playing out in the same-sex marriage context regarding the causal connection (or lack thereof) between marriage and gender, on the one hand, and positive child welfare outcomes, on the other.
This Article approaches this increasingly contentious debate in a novel way by focusing on an issue on which both sides converge—the desire to protect the well-being of children. Using this lens, the Article accomplishes two things. First, this Article offers a doctrinal analysis of an issue that, until now, has remained almost entirely unexplored. Specifically, the Article demonstrates that, contrary to the asserted child welfare goals of marriage-preference proponents, marriage-only ART rules harm the financial and, in turn, the overall well-being of nonmarital children. Second, the Article considers how to reform the inadequacies of the current regime. After assessing a range of potential normative solutions, the Article concludes by proposing a new theoretical framework for determining the legal parentage of all children—both marital and nonmarital—born through ART.