In many ways, Michael C. Hughes is an average American family man. He is a middle-aged father of four from Rochester, Minnesota. He has been married to his wife for twelve years. He has a broad, muscular frame and is partial to cowboy hats and wide belt buckles. But Hughes is unlike the average American family man in one fundamental way: he was born biologically female. Hughes is one of the more than 1.4 million transgender adults in the United States, a small but increasingly visible group of people who are currently facing a unique legal battle to use restrooms and single-sex facilities that align with their gender identity.
Hughes garnered publicity with a viral photo taken in a public restroom, in protest of “bathroom bills”—laws that require Hughes to use women’s restrooms and facilities, despite his gender identity. “Bathroom bill” is the common name for legislation that prohibits individuals from using bathrooms (or other private, single-sex facilities like locker rooms) that do not match their biological sex or sex markers on their identification documents, depending on the bill. Posing in front of the bathroom mirror in a women’s restroom, as female patrons look on questioningly, Hughes “presents” as a male—making him appear out of place in the restroom that nonetheless matches his biological sex. Hughes’ photo and its accompanying hashtag, “#WeJustNeedtoPee,” went viral in 2016, reflecting Americans’ rapt attention on transgender issues.
This Article argues that there was an important causal link, to date unrecognized, between the widespread dissatisfaction with the jury in the United States during the Gilded Age and Progressive era among many elite lawyers and judges and choices by U.S. policymakers and jurists about colonial governance in Puerto Rico and the Philippines. The story starts with the Insular Cases—landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to “incorporate” the territories into the union, which it never did. The conventional wisdom among scholars is that the Supreme Court in these decisions shamefully ratified the U.S. government’s discrimination and domination over the peoples of newly-acquired colonies. Racism and cultural chauvinism are blamed as primary causal factors.
The Article shows that Congress, the executive, the courts, and local legislatures in the Philippines and Puerto Rico granted almost every single right contained in the Constitution to the territorial inhabitants, with the exception of the jury. While racism was present and causally important, it is also true that U.S. governance in the territories was not a project of wholesale discrimination. Motivations, goals, and outcomes were complex. Protection of rights of local inhabitants was a key concern of U.S. policymakers. But the jury was considered a unique case, different than other rights.
Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for their employees’ sincerely held religious practices and beliefs as long as the accommodation does not pose an “undue hardship” on the conduct of the employer’s business. But “undue hardship” is a vague term that has led to unclear, inconsistent, unfair, and even discriminatory precedent. This Note proffers a new framework for religious discrimination law through the incorporation of the “essential functions” provision of a similar law, Title I of the Americans with Disabilities Act, in order to strike a fairer balance between the competing rights and interests of employers and employees.
In 2014, the United Nations initiated a plan to end statelessness, the widely deplored condition in which a person does not have a nationality or the rights conferred by citizenship, which aims to fill gaps in national laws that contribute to statelessness. One such gap exists in the United States’ Immigration and Nationality Act—specifically, a gender-based physical-presence requirement that prescribes how American parents can confer citizenship to their children. The Second Circuit, reviewing the physical-presence requirement, held it unconstitutional in Morales-Santana v. Lynch, despite a conflicting ruling from the Ninth Circuit, because the requirement violates the Constitution’s Equal Protection Clause. Having granted certiorari to Morales-Santana, the Supreme Court must take this important opportunity to affirm the Second Circuit to ensure that no American citizen is made stateless by a wrongful interpretation of the Immigration and Nationality Act. This Note explores relevant domestic and international laws and conventions and explains why affirming the Second Circuit in Morales-Santana is consistent with both the United Nations’ efforts to end statelessness and the U.S. Constitution.
The ideal of diversity so pervades American public life that we now speak of diversity where we once spoke of equality. Yet we seldom pause to consider the costs that have accompanied this shift. In Grutter v. Bollinger, the Supreme Court held that a public university’s use of racial preferences in student admissions will not violate equal protection if the challenged admissions policy is narrowly tailored to achieve the university’s compelling interest in student body diversity. Rather, however, than quieting public controversies about affirmative action, the decision has been a frequent target of legal and political attack. Grutter and the Court’s subsequent decisions in Fisher v. University of Texas at Austin have established the dominant legal conception of diversity, but they have also left many questions unanswered concerning the applicability of Grutter’s diversity rationale outside of the educational context. This Article rejects Grutter’s rationale, but not the relevance of diversity to the goal of equal opportunity.
“There is a war against religion!” “Exemptions on religious groups undermine civil rights!” “Pluralism and tolerance are in jeopardy!” “Freedom for some ends up trumping freedom and equality for others!” Whether any of these individual statements is true, the rising claims of catastrophe by opposing groups across the United States prompted an intense and engaging conference, “Religious Accommodation in the Age of Civil Rights,” held at Harvard Law School on April 3–5, 2014, sponsored by Harvard Law School, the Williams Institute at the University of California in Los Angeles, the American Civil Liberties Union, and the University of Southern California Center for Law, History and Culture. Engaging and intense discussions among forty panelists and over 120 participants generated the articles presented in this issue as well as others filling special issues of two other journals. The focus on accommodations for religion reflects both increasing challenges to traditional denials of rights and protections for lesbian, gay, bisexual, and transgender individuals and religious objections to contraception and abortion. Clashes increase with political and legal advances in legal treatment of marriage equality for same-sex couples and expanding recognition of legal claims of businesses for freedom of speech and religion. Ongoing disagreements over the scope of existing and potential federal, state, and local antidiscrimination laws, health insurance requirements, and other general rules trigger political and social debates but also produce legal questions requiring answers.
For the better part of a decade, a number of well-intentioned scholars of religious liberty have insisted that, as Douglas Laycock put it, “conflicts . . . between religious conservatives and the gay rights movement have live-and-let-live solutions in the tradition of American liberty.” More recently, some have tried to concretize this general claim in more-or-less specific proposals for accommodation of religious objectors in the context of state laws recognizing same-sex marriage. In no small part because of continuing religious conscientious objection to abortion and newly vigorous religious objection to contraception, including but not limited to demands for exemptions from the contraception mandate of the Patient Protection and Affordable Care Act (“ACA”) such as those recently considered by the Supreme Court in cases like Burwell v. Hobby Lobby, some of these scholars have now expanded the reach of their proposals for religious accommodation from the narrow issue of same-sex marriage to more broad “disagreements over sexual morality.” In this broader context, they renew their claims, first, that to arrive at a live-and-let-live solution is not only desirable but possible “if we have the will to do so,” and second, that to do otherwise than accommodate would be untrue to this nation’s tradition of religious liberty.
Americans recently marked and celebrated the fiftieth anniversary of the passage of the Civil Rights Act of 1964. During the past half-century, a wide variety of antidiscrimination laws, civil rights protections, and equal access rules have been enacted by the full range of authorities and jurisdictions, from small towns to the United Nations. These measures, in addition to a broad array of policies and programs having to do with education, voting rights, social welfare, and economic opportunity, have in many ways helped to make more real what might otherwise have remained only an ideal of “equal citizenship.” As President Barack Obama remarked on the anniversary of the Act, it “brought us closer to making real the declaration at the heart of our founding—that we are all created equal.” We continue to disagree, reasonably even if strongly, about the precise content of this ideal, the best ways to implement it, and its coherence. Even if the “idea of equality” is not entirely “empty,” it is certainly more easily and more often admired than understood. This is not surprising and does not detract from its being a shared ideal. In any event, and in the President’s words, the “journey continues.”
Dating back to the revolutionary era, France and the United States have vied, sometimes directly, in a longstanding contest for leadership status in the area of human rights. Where gay marriage is concerned, however, it would be more accurate to describe both nations as followers rather than leaders. In late April 2013, about twelve years after the Netherlands became the world’s first nation to legalize same-sex marriage, and on the heels of large and passionate protests by social conservatives, France became the fourteenth such country, eliminating the French Civil Code’s gender-specific language barring equal marriage. Not to be outdone, the United States, acting through judicial rather than legislative channels, followed suit in June 2013 with United States v. Windsor, striking down the federal Defense of Marriage Act (“DOMA”).
Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. Indeed, these persisting tensions have pressed two fundamental questions to the forefront of legal debate: what institutions count as religious institutions and to what extent should these institutions be excused from complying with otherwise valid laws?