A Confident Pluralism – Article by John D. Inazu

From Volume 88, Number 3 (March 2015)
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In February 2014, the Kansas House of Representatives proposed a bill that would have permitted business owners with religious objections to deny some customers services and accommodations. Sixty years after Brown v. Board of Education, Kansas legislators would have allowed citizens of Topeka to refuse restrooms, restaurants, and water fountains to other citizens.

Across the state of California today, conservative religious student groups are no longer welcome on public school campuses like Hastings College of the Law. And it’s not just the West Coast. Vanderbilt University, Bowdoin College, and a number of other schools have also kicked out conservative religious groups. These schools rely on “all-comers” policies that require student groups to accept any student who wants to join, irrespective of a student’s beliefs or actions. Conservative religious groups with creedal membership or leadership requirements are unable to comply.


 

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Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law – Article by Andrew Koppelman

From Volume 88, Number 3 (March 2015)
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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.


 

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Accommodating Nonmarriage – Article by Melissa Murray

From Volume 88, Number 3 (March 2015)
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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.


 

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Die and Let Live? The Asymmetry of Accommodation – Article by Steven D. Smith

From Volume 88, Number 3 (March 2015)
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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.


 

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It’s About Money: The Fundamental Contradiction of Hobby Lobby – Article by Nomi Maya Stolzenberg

From Volume 88, Number 3 (March 2015)
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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.


 

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Stereotype Threat and Antidiscrimination Law: Affirmative Steps to Promote Meritocracy and Racial Equality in Education – Article by Sam Erman & Gregory M. Walton

From Volume 88, Number 2 (January 2015)
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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.


 

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The Reasonableness of a Race-Based Suspicion: The Fourth Amendment and the Costs and Benefits of Racial Profiling in Immigration Enforcement – Note by Christian Briggs

From Volume 88, Number 2 (January 2015)
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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.”


 

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A Matter of Perspective: Textualism, Stare Decisis, and Federal Employment Discrimination Law – Article by Stephen M. Rich

From Volume 87, Number 5 (July 2014)
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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.


 

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Prayer for Relief: Anti-Muslim Discrimination as Racial Discrimination – Note by Romtin Parvaresh

From Volume 87, Number 5 (July 2014)
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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.


 

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Understanding Insurance Antidiscrimination Laws – Article by Ronen Avraham, Kyle D. Logue, & Daniel Schwarcz

From Volume 87, Number 2 (January 2014)
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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.


 

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