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Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role Of Barnette In 303 Creative Llc V. Eleni, Linda C. Mcclain
Do Public Accommodations Laws Compel “What Shall Be Orthodox”?: The Role Of Barnette In 303 Creative Llc V. Eleni, Linda C. Mcclain
Faculty Scholarship
This article addresses the U.S. Supreme Court’s embrace, in 303 Creative LLC v. Elenis, of a First Amendment objection to state public accommodations laws that the Court avoided in Masterpiece Cakeshop v. Colorado Civil Rights Commission: such laws compel governmental orthodoxy. These objections invoke West Virginia Board of Education v. Barnette’s celebrated language: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.” They also …
Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing 'Armies Of Compassion' 2.0?, Linda C. Mcclain
Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing 'Armies Of Compassion' 2.0?, Linda C. Mcclain
Faculty Scholarship
Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it …
Prejudice, Constitutional Moral Progress, And Being "On The Right Side Of History": Reflections On Loving V. Virginia At Fifty, Linda C. Mcclain
Prejudice, Constitutional Moral Progress, And Being "On The Right Side Of History": Reflections On Loving V. Virginia At Fifty, Linda C. Mcclain
Faculty Scholarship
What does it mean to be on the “right” or “wrong” side of history? When Virginia’s Attorney General explained his decision not to defend Virginia’s “Defense of Marriage Law” prohibiting same-sex marriage, he asserted that it was time for Virginia to be on the “right” rather than “wrong” side of history and the law. He criticized his predecessors, who defended the discriminatory laws at issue in Brown v. Board of Education, Loving v. Virginia, and United States v. Virginia. Loving played a crucial role in the majority opinion in Obergefell v. Hodges, even as the dissenters disputed …
Assisted Reproduction Inequality And Marriage Equality, Seema Mohapatra
Assisted Reproduction Inequality And Marriage Equality, Seema Mohapatra
Faculty Scholarship
No abstract provided.
Contemplating Masterpiece Cakeshop, Terri R. Day
Contemplating Masterpiece Cakeshop, Terri R. Day
Faculty Scholarship
No abstract provided.
Conscience Protection And Discrimination In The Republican Party Platform And Mississippi's H.B. 1523, Religious Freedom Institute, Linda C. Mcclain
Conscience Protection And Discrimination In The Republican Party Platform And Mississippi's H.B. 1523, Religious Freedom Institute, Linda C. Mcclain
Faculty Scholarship
Last May, before the Supreme Court issued its landmark opinion in Obergefell v. Hodges,Cornerstone sponsored a symposium on “Responding to Indiana RFRA and Beyond,” which focused on Governor Mike Pence’s swift “fix” of Indiana’s RFRA, after protests and threats of boycotts, to clarify that it would “not create a license to discriminate.” Particularly controversial were provisions protecting the conscience of persons operating for-profit businesses. In that symposium, I observed that public discourse frequently referred back to the Civil Rights Act of 1964, because “many people relate the current battle over protecting conscience in the context of …
Lgbt Rights And The Mini-Rfra: A Return To Separate But Equal, Terri R. Day, Danielle Weatherby
Lgbt Rights And The Mini-Rfra: A Return To Separate But Equal, Terri R. Day, Danielle Weatherby
Faculty Scholarship
No abstract provided.
Civil Marriage For Same-Sex Couples, "Moral Disapproval," And Tensions Between Religious Liberty And Equality, Linda C. Mcclain
Civil Marriage For Same-Sex Couples, "Moral Disapproval," And Tensions Between Religious Liberty And Equality, Linda C. Mcclain
Faculty Scholarship
In the United States and Europe, an increasing emphasis on equality has pitted rights claims against each other, raising profound philosophical, moral, legal, and political questions about the meaning and reach of religious liberty. Nowhere has this conflict been more salient than in the debate between claims of religious freedom, on one hand, and equal rights claims made on the behalf of members of the lesbian, gay, bisexual, and transgender (LGBT) community, on the other. As new rights for LGBT individuals have expanded in liberal democracies across the West, longstanding rights of religious freedom—such as the rights of religious communities …
Testimony Regarding The First Amendment Defense Act (Fada), Katherine M. Franke, Elizabeth A. Sepper, Ariela Gross, Sylvia A. Law, Martin S. Flaherty, Suzanne B. Goldberg, Carol Sanger, J. Stephen Clark, Florens Wagman Roisman, Gregory Magarian, Caroline Mala Corbin, Nomi Stolzenberg, Carlos A. Ball, Aaron Ezra Waldman, Aziza Ahmed, Jennifer A. Drobac, Deborah Widiss, Arthur S. Leonard, Martha M. Ertman
Testimony Regarding The First Amendment Defense Act (Fada), Katherine M. Franke, Elizabeth A. Sepper, Ariela Gross, Sylvia A. Law, Martin S. Flaherty, Suzanne B. Goldberg, Carol Sanger, J. Stephen Clark, Florens Wagman Roisman, Gregory Magarian, Caroline Mala Corbin, Nomi Stolzenberg, Carlos A. Ball, Aaron Ezra Waldman, Aziza Ahmed, Jennifer A. Drobac, Deborah Widiss, Arthur S. Leonard, Martha M. Ertman
Faculty Scholarship
My testimony today is delivered on behalf of twenty leading legal scholars who have joined me in providing an in depth analysis of the meaning and likely effects of the First Amendment Defense Act (FADA), were it to become law. We feel particularly compelled to provide testimony to this Committee because the first legislative finding set out in FADA declares that: “Leading legal scholars concur that conflicts between same-sex marriage and religious liberty are real and should be addressed through legislation.” As leading legal scholars we must correct this statement: we do not concur that conflicts between same-sex marriage and …
From Outlaw To Outcast To In-Law? Contesting The Perils Of Marriage Equality, Linda C. Mcclain
From Outlaw To Outcast To In-Law? Contesting The Perils Of Marriage Equality, Linda C. Mcclain
Faculty Scholarship
I am pleased to offer the opening commentary in this BU Law Review Annex symposium on Professor Katherine Franke’s provocative new book, Wedlocked: The Perils of Marriage Equality. As previewed by the book’s additional subtitle, “How African Americans and Gays Mistakenly Thought the Right to Marry Would Set Them Free,” Franke aims to provide “cautionary tales” gleaned, or lessons learned, from juxtaposing post-Civil War regulation of the marriages of African Americans freed from slavery with today’s movement for marriage equality for gay men and lesbians.3 Long a skeptic about the gay community’s focus on the goal of marriage—its (in …
Federalism, Marriage, And Heather Gerken's Mad Genius, Kristin Collins
Federalism, Marriage, And Heather Gerken's Mad Genius, Kristin Collins
Faculty Scholarship
In her characteristically astute and engaging essay, Professor Heather Gerken offers a sensitive and sympathetic reading of Justice Anthony Kennedy’s majority opinion in United States v. Windsor.1 Her core claim is that Windsor—and the transformation of political and legal support for same-sex marriage in the United States—demonstrate how “federalism and rights work together to promote change” and, in particular, how federalism furthers the equality and liberty values of the Fourteenth Amendment.2 This is a natural line of argument for Gerken to develop with respect to Windsor, as she has produced an incredible body of scholarship dedicated to what …
Similarly Situated, Giovanna Shay
Similarly Situated, Giovanna Shay
Faculty Scholarship
In recent marriage equality litigation, opponents of same-sex marriage have argued that gay and straight couples are not “similarly situated” with respect to the purposes of the marriage statutes. Courts in Iowa,Connecticut, and California have rejected these arguments (although the California result was overturned by Proposition 8, which itself was invalidated by a district court as this Article was being written). The Iowa and California courts also questioned the structure of the “similarly situated” analysis asserted by the opponents. Marriage equality opponents in those states pressed a “threshold”-type similarly situated analysis.Under this scheme, if the two groups are not similarly …
The Curious Relationship Of Marriage And Freedom, Katherine M. Franke
The Curious Relationship Of Marriage And Freedom, Katherine M. Franke
Faculty Scholarship
This essay explores why and how today’s marriage equality movement for same-sex couples might benefit from lessons learned by African Americans when they too were allowed to marry for the first time in the immediate post-Civil War era. Why has the right to marry, rather than say, employment rights, educational opportunity or political participation, emerged as the preeminent vehicle by and through which the freedom, equality and dignity of gay men and lesbians is being fought in the present moment. Why marriage? In what ways are the values, aspirations, and even identity of an oppressed community shaped when they are …
Dignifying Rights: A Comment On Jeremy Waldron’S Dignity, Rights, And Responsibilities, Katherine M. Franke
Dignifying Rights: A Comment On Jeremy Waldron’S Dignity, Rights, And Responsibilities, Katherine M. Franke
Faculty Scholarship
In Dignity, Rights, and Responsibilities1 Jeremy Waldron offers a characteristically thoughtful and elegant account of rights, or as he calls it, responsibility-rights. As Waldron rightfully acknowledges, rights understood as a form of responsibility are not meant to capture every species of rights, but to provide us with a new analytic resource for better understanding a particular subset of rights that curiously entail a form of responsibility on the part of the rights holder. The link between rights and responsibility, Waldron argues, is built upon a strong foundational commitment to human dignity. The most compelling contribution of Waldron's paper is his …
Public Sex, Same-Sex Marriage, And The Afterlife Of Homophobia, Katherine M. Franke
Public Sex, Same-Sex Marriage, And The Afterlife Of Homophobia, Katherine M. Franke
Faculty Scholarship
The summer of 2011 marked an important turning-point in the geography and politics of sex: public sex, previously a domain dominated by the specter of a hypersexualized gay man, became the province of the irresponsible, foolish, and self-destructive heterosexual man, such as Anthony Weiner. Meanwhile, homosexuals were busy domesticating their sexuality in the private domain of the family. Just as hetero-sex shamefully seeped out into the open, homo-sex disappeared from view into the dignified pickets of private kinship. In this essay I examine the panic that unfolded in connection with Representative Weiner’s tweets as a kind of afterlife of homophobia; …
Clarion Call Or False Alarm: Why Proposed Exemptions To Equal Marriage Statutes Return Us To A Religious Understanding Of The Public Marketplace, Taylor Flynn
Faculty Scholarship
This Article discusses the problematic issues arising from proposed religious exemptions to equal marriage statutes. In the Author's view these exemptions would create the societal framework in which lesbians, bisexuals, and gay men can be refused service in virtually all aspects of life, whether fundamental or mundane—from healthcare to housing, from employment to flower-buying. This would all be accomplished with the express permission of the state. The Author believes that these proposals could permit widespread discrimination on a multitude of protected bases. The proposals appear to have been crafted to seize on cultural and religious anxiety and fears concerning same-sex …
Eve Sedgwick, Civil Rights, And Perversion, Katherine M. Franke
Eve Sedgwick, Civil Rights, And Perversion, Katherine M. Franke
Faculty Scholarship
It is hard to imagine where queer theory would be without Eve Sedgwick. Indeed, I can't imagine where my own thinking would be had it not been informed, enriched, challenged, repulsed, and seduced by Sedgwick's writing. Between Men: English Literature and Male Homosocial Desire and The Epistemology of the Closet, the early work, gave me the tools to think about the fundamental landscapes of my intellectual world in ways that decoupled and reconfigured the binaries of male/ female, heterosexual/homosexual, friend/lover, and public/private. Sedgwick gave us the idea of homosociality and a critique of identity and identification that exploded the …
State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
Faculty Scholarship
This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a …
“A Painful Process Of Waiting”: The New York, Washington, New Jersey, And Maryland Dissenting Justices Understand That “Same-Sex Marriage” Is Not What Same-Sex Couples Are Seeking, Barbara Cox
Faculty Scholarship
This essay focuses on the recent decisions by the highest courts of four states rejecting the claims of individuals in same-sex relationships that they must be permitted to marry the partner of their choice. In the cases of Hernandez v. Robles, Andersen v. King County, Lewis v. Harris, and Conaway v. Deane, a majority or plurality of each court determined that the bans preventing individuals in same-sex couples from marrying were constitutional. Understanding these cases is particularly important as additional state supreme courts address the cases of similar plaintiffs pending before them.
The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain
The Evolution - Or End - Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain
Faculty Scholarship
The debate over legalization of same-sex marriage implicates the question of whether doing so would signal the end - or destruction - of the institution of marriage, or instead would be an appropriate evolution of marriage laws that is in keeping with the ends of marriage and with relevant public values. This essay comments on an earlier published debate on that question: Special Issue: The Evolution of Marriage, 44 Family Court Review 33-105 (2006). The essay contends that the appeal to preserving a millennia-old tradition of marriage against destruction fails to reckon with the evolution of the institution of civil …
The Politics Of Same-Sex Marriage Politics, Katherine M. Franke
The Politics Of Same-Sex Marriage Politics, Katherine M. Franke
Faculty Scholarship
In this Essay I would like to share some reflections on the politics of same-sex marriage politics. In a very short period of time, this issue has moved to the center of the gay and lesbian rights movement as well as larger mainstream political and legal debates. Some have even argued that this issue affected, if not determined, the outcome of the 2004 presidential election. This, I believe, is rather an overstatement, but I must concede that the issue has gained traction in ways that most of us would not have predicted five years ago. The states of Vermont and …
Marriage Equality In New Jersey, Suzanne B. Goldberg
Marriage Equality In New Jersey, Suzanne B. Goldberg
Faculty Scholarship
The question at the heart of the current challenge to New Jersey's marriage law is not a complicated one: Can the state maintain different rules for recognizing the relationships of gay and non-gay couples?
Toward A More Perfect Union: The Road To Marriage Equality For Same-Sex Couples, Jennifer L. Levi
Toward A More Perfect Union: The Road To Marriage Equality For Same-Sex Couples, Jennifer L. Levi
Faculty Scholarship
The Author believes that civil unions have become synonymous with inequality. In this posture, the term inequality should be descriptive rather than subjective. She argues that civil unions relegate gay and lesbian couples to second-class status. However characterized or defined, civil unions are not marriages. Those two statuses are not equivalent; they are not equal. Within that framework, in order for any one person to decide where he or she stands on the issue of whether gay and lesbian couples should be entitled to marriage, civil unions, something else, or nothing, he or she must first understand why marriage matters …
Marriage, Cohabitation, And Collective Responsibility For Dependency, Elizabeth S. Scott
Marriage, Cohabitation, And Collective Responsibility For Dependency, Elizabeth S. Scott
Faculty Scholarship
Marriage has fallen on hard times. Although most Americans say that a lasting marriage is an important part of their life plans, the institution no longer enjoys its former exclusive status as the core family form. This is so largely because social norms that regulate family life and women's social roles have changed. A century (or even a couple of generations) ago, marriage was a stable economic and social union that, for the most part, lasted for the joint lives of the spouses. It was the only option for a socially sanctioned intimate relationship and was the setting in which …
"You Are Entering A Gay And Lesbian Free Zone": On The Radical Dissents Of Justice Scalia And Other (Post-) Queers – [Raising Questions About Lawrence, Sex Wars, And The Criminal Law], Bernard Harcourt
Faculty Scholarship
The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The Court's ruling is the coup de grâce to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal …
Deliberative Democracy, Overlapping Consensus, And Same-Sex Marriage, Linda C. Mcclain
Deliberative Democracy, Overlapping Consensus, And Same-Sex Marriage, Linda C. Mcclain
Faculty Scholarship
A pressing concern in political and constitutional theory is how to construct a model of justification in law and politics that offers methods for securing agreement and social cooperation in the face of moral pluralism. A common goal of this work is to elaborate the requirements of deliberative democracy, that is, a model of democratic self-government that "asks citizens and officials to justify public policy by giving reasons that can be accepted by those who are bound by it."' Two fundamental questions are: (1) are there any limits to the grounds to which citizens may appeal or the reasons that …
Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond 'Empty' Toleration To Toleration As Respect, Linda C. Mcclain
Toleration, Autonomy, And Governmental Promotion Of Good Lives: Beyond 'Empty' Toleration To Toleration As Respect, Linda C. Mcclain
Faculty Scholarship
This Article considers discontent with liberal toleration as being both too empty, because it fails to secure respect and appreciation among citizens who tolerate each other, and too robust, because it precludes government from engaging in a formative project of helping citizens to live good, self-governing lives. To meet these criticisms, the Article advances a model of toleration as respect, as distinguished from a model of empty toleration, drawing on three rationales for toleration: the anti-compulsion rationale, the jurisdictional rationale, and the diversity rationale. It defends toleration as respect against some common criticisms-emanating from feminist, civic republican, and liberal perfectionist …