A Confident Pluralism – Article by John D. Inazu

From Volume 88, Number 3 (March 2015)

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.



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

From Volume 88, Number 3 (March 2015)

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.



Accommodating Nonmarriage – Article by Melissa Murray

From Volume 88, Number 3 (March 2015)

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.



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

From Volume 88, Number 3 (March 2015)

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.



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

From Volume 88, Number 3 (March 2015)

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.



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)

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.



Black and White or Red All Over? The Impropriety of Using Crime Scene DNA to Construct Racial Profiles of Suspects – Note by Natalie Quan

From Volume 84, Number 6 (September 2011)

When the body of a deceased woman was found near the Mississippi River close to Baton Rouge in July 2002, DNA retrieved from the crime scene was linked to the murders of two other women in the area, and multiple law enforcement agencies subsequently began an aggressive search for the serial killer. Using witness statements and an FBI profile, the FBI, the Louisiana State Police, and the police and sheriff’s departments of Baton Rouge determined that their suspect was a young white man. After a fourth murder believed to have been committed by the same perpetrator occurred in December 2002, officials intensified their hunt for the killer by spending over one million dollars to collect and test the DNA of some 1200 white men in the area, but they made no matches and consequently had no leads.

In March 2003, the investigators crossed paths with molecular biologist Tony Frudakis of the company DNAPrint Genomics, who claimed that he could ascertain the suspect’s social race by testing the crime scene DNA for 176 specific genetic markers that disclose information about physical traits. Frudakis said that because certain markers are found predominantly in people of African, Indo-European, Native American, or South Asian roots, he could analyze their frequencies and predict the suspect’s ancestry with 99 percent accuracy, and then infer social race from this ancestry finding. Initially skeptical of the science, officials sent Frudakis DNA samples from twenty individuals with known racial designations—and upon blind testing the samples, Frudakis correctly identified the race of each individual.

Even more intriguing were the results of Frudakis’s analysis of the Baton Rouge serial killer’s DNA. Using a test he called DNAWitness, Frudakis concluded that the suspect’s “biogeographical ancestry” was 85 percent Sub-Saharan African and 15 percent Native American, which left, in his words, “no chance that this is a Caucasian. No chance at all.”



Book Review: Integrating into a Burning House: Racial- and Identity-Conscious Visions in Brown’s Inner City – Article by Anthony V. Alfieri

From Volume 84, Number 3 (March 2011)

On March 27, 1968, Reverend Martin Luther King, Jr., exhausted by a day of antipoverty rallies in New Jersey, and frustrated by the Southern Christian Leadership Conference’s poverty campaign in Washington, D.C. and Memphis, Tennessee declared: “We may be integrating into a burning house.” The story of the failed integration of America’s “burning house”–its schools, neighborhoods, and workplaces–begins for many with the U.S. Supreme Court’s 1954 decision in Brown v. Board of Education. Fifty-six years later, on March 8, 2010, at the Edmund Pettus Bridge in Selma, Alabama, U.S. Department of Education Secretary Arne Duncan invoked both King and Brown in announcing the renewed commitment of the department to civil rights enforcement in schools across America. Standing at the historic site of Bloody Sunday in Selma, a critical battle ground in the civil rights movement, Duncan outlined a series of new enforcement initiatives–guidance letters, compliance reviews, data collection, and monitoring–intended to redress school-based inequities in urban communities of color. Espousing “the cause of equal educational opportunity,” he asked: “How do we maximize freedom and opportunity in schools and communities where low-income black and brown children, and students with disabilities, still are treated unequally?”

Duncan’s modern invocation of Brown, his commitment to educational opportunity and racial justice in new contexts of inequality, and his search for alternative pathways to ensure community equity invites a contemporary reassessment of Brown in America’s inner-city public schools and impoverished neighborhoods. Martha Minow’s superb new book, In Brown’s Wake: Legacies of America’s Educational Landmark, presents a sweeping appraisal of the landmark status and mixed legacy of Brown in the field of public education, here and abroad. The dean of Harvard Law School and an international leader in law reform and educational policy, Minow embraces Brown as an enduring, fruitful resource for civic reformers engaged in law, social science, and social justice movements. Her purpose in revisiting Brown stems from an academic and activist sense of dismay over the bleak tenor of the fiftieth anniversary celebration of that ground-breaking decision in public and scholarly discourse, a widely circulated discourse that “stressed the failures of the decision.” To her credit, Minow offers In Brown’s Wake as a useful corrective, duly acknowledging her own “disappointments” in Brown and its legal-political progeny while exploring its “unexpected legacies” for the nation and the international community.



Rethinking Donor Disclosure After the Proposition 8 Campaign – Note by David Lourie

From Volume 83, Number 1 (November 2009)

Proposition 8, the California ballot measure that amended the state constitution to deny marriage to same-sex couples, passed by a small margin in November 2008. The campaign was contentious, well funded by both sides, and the subject of much media attention. After Proposition 8 passed, however, the debate about same-sex marriage in California was far from over. Shortly after the election, Proposition 8 opponents organized protests against certain Proposition 8 supporters and their employers throughout California and in other states. For example, opponents protested at the Church of Latter-Day Saints in Los Angeles because the church and its members raised a significant amount of money to support Proposition 8. Opponents also organized boycotts of businesses whose owners or employees donated to support Proposition 8. Several of these protests had negative repercussions for donors. For example, following threats of boycotts of his musical works and his employer, Scott Eckern, the longtime artistic director of the California Musical Theater, resigned from his position after it was revealed that he donated $1000 to Proposition 8. Marc Shaiman, the composer of the music for Hairspray, told Eckern that he would not let his work be performed in the theater due to Eckern’s support for Proposition 8. U.S. law requires a secret ballot for both candidate and issue elections, so how did opponents of Proposition 8 identify the donors to Proposition 8? The answer lies in disclosure laws. In California, as in most states, campaigns must publicly disclose certain information about individuals who donate to a ballot measure or candidate. California’s Political Reform Act of 1974, as amended, provides that all campaign donations of $100 or more must be published on the Secretary of State’s website, allowing the public to easily search for the names of campaign donors online. Further, not only must the donor’s name and the amount of the contribution be disclosed, but the donor’s street address, occupation, and employer’s name—or, if self-employed, the name of the donor’s business—must also be disclosed. On the federal level, campaign contributions to federal candidates are also now easily accessible to the public online. Federal law requires disclosure of individuals who contribute $200 or more to a candidate. This information can be viewed online through the Federal Election Commission’s (“FEC’s”) website, as well as on other websites. Not only has technology increased the availability of donor information online, but political entrepreneurs have also taken the FEC’s campaign finance data and made it even more accessible online, allowing users to search the data by multiple categories. For example, the Huffington Post, a popular blog, runs a search engine called “Fundrace 2008,” which allows a user to search for donors to 2008 presidential candidates by a donor’s first or last name, address, city, or employer. The website boasts about the easy access to the political leanings of nearly anyone a user knows of: “Want to know if a celebrity is playing both sides of the fence? Whether that new guy you’re seeing is actually a Republican or just dresses like one?”



Courts and The Politics of Backlash: Marriage Equality Litigation, Then and Now – Article by Jane S. Schacter

From Volume 82, Number 6 (September 2009)

Groundbreaking decisions on same-sex marriage, particularly those from the Hawaii, Massachusetts, and California supreme courts, have generated widespread political backlash in the form of state constitutional amendments and statutes, the federal Defense of Marriage Act (“DOMA”), a proposed federal constitutional amendment, and more. By contrast, the first state supreme court decision to strike down a ban on interracial marriage—Perez v. Sharp, decided by the California Supreme Court in 1948—was met with barely a political whimper, even though it made international headlines and came decades before broad public acceptance of interracial marriage. This Article identifies that puzzling difference, tells the political story of the cases, explores factors that might explain the disparity in political and public reactions, and uses the contrasting case studies to elucidate the political dynamics that surround courts today and to suggest directions for the future study of antijudicial backlash.