Law Commons^™

Brief Of Amici Curiae Legal Scholars In Support Of Equality In Support Of Respondents, Fulton V. City Of Philadelpha, Kyle Velte, David Cruz, Michael Higdon, Anthony Michael Kreis, Shirley Lin, Linda C. Mcclain

Faculty Scholarship

This Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents filed in Fulton v. City of Philadelphia addresses the propriety of an analogy to race discrimination in public accommodation cases involving sexual orientation discrimination. The race analogy in sexual orientation cases proceeds as follows: Advocates and judges widely agree that courts should, and would, reject a religious exemption claim by a public accommodation—such a foster care agency—seeking to turn away an African-American or interracial couple based on the public accommodation’s religious beliefs that Blacks are inferior to whites or that the races should not mix. …

Covid-19 And Lgbt Rights, Suzanne B. Goldberg

Faculty Scholarship

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.

This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) …

The Unnecessary And Unfortunate Focus On “Animus,” “Bare Desire To Harm,” And “Bigotry” In Analyzing Opposition To Gay And Lesbian Rights, James E. Fleming

Faculty Scholarship

I am delighted to participate in this symposium on Professor Linda C. McClain’s wonderful new book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. All of the other papers in this symposium focus on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (and thus connect with Chapter Eight of her book, on claims of religious exemptions from protections of gay and lesbian rights), while my piece will join issue with the related Chapter Seven, on bigotry, motives, and morality in the Supreme Court’s gay and lesbian rights cases. In this brief Essay, I cannot do justice …

The Rhetoric Of Bigotry And Conscience In Battles Over "Religious Liberty V. Lgbt Rights", Linda C. Mcclain

Faculty Scholarship

Charges, denials, and countercharges of “bigotry” are a familiar feature in debates over the evident conflict between LGBT rights and religious liberty. A frequent claim is that religious individuals who reject the extension of civil marriage to same-sex couples and seek conscience-based exemptions from state public accommodations law that protect against discrimination on the basis of sexual orientation are being “branded” as bigots. The rhetoric of bigotry raises a number of puzzles. Is sincerity or the appeal to conscience a defense to charge of bigotry? Is a charge of bigotry inferred simply from asserting that society should learn lessons from …

Brief Of Amici Curiae Scholars Of The Constitutional Rights And Interests Of Children In Support Of Respondents In Masterpiece Cakeshop Ltd, Et Al V. Colorado Civil Rights Commission, Angela Onwuachi-Willig, Catherine E. Smith, Laura Fontana, Tanya Washington, Barbara Bennett Woodhouse

Faculty Scholarship

Masterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission is about much more than a wedding cake. It is about the rightful place of LGBT people and their families in the commercial and public sphere. In fact, children are already bearing the brunt of exclusionary practices in the public marketplace because of their relationship to or association with their LGBT parents. In Michigan, a pediatrician refused to treat an infant based solely on the fact that the child had lesbian mothers. In Kentucky, a judge refused to hear adoption cases of children involving LGBT adoptive-parents-to-be. In Tennessee, a nondenominational …

Overreach And Innovation In Equality Regulation, Olatunde C.A. Johnson

Faculty Scholarship

At a time of heightened concern about agency overreach, this Article highlights a less appreciated development in agency equality regulation. Moving beyond traditional bureaucratic forms of regulation, civil rights agencies in recent years have experimented with new forms of regulation to advance inclusion. This new "inclusive regulation" can be described as more open ended, less coercive, and more reliant on rewards, collaboration, flexibility, and interactive assessment than traditional modes of civil rights regulation. This Article examines the power and limits of this new inclusive regulation and suggests a framework for increasing the efficacy of these new modes of regulation.

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 …

Testimony On Pennsylvania Sb1306: No Additional Protections For Religious Freedom, Katherine M. Franke, Burton Caine, Lenore F. Carpenter, Eric A. Feldman, Thersa Glennon, Nancy J. Knauer, Jules Lobel, Wendell Pritchett, Dara E. Purvis, Brishen Rogers, Victor C. Romero, Kathryn M. Stanchi, Nancy A. Welsh

Faculty Scholarship

On behalf of the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School I offer the following legal analysis of Senate Bill 1306. Overall, the current version of the bill promises to modernize Pennsylvania’s Human Relations Act by expanding antidiscrimination protections in employment to include sexual orientation and gender identity-based discrimination. Were the Pennsylvania legislature to pass SB 1306, the Commonwealth would join twenty-two states that include sexual orientation and nineteen states that include gender identity in their laws assuring equal employment opportunities for their citizens.

Memorandum On Mississippi House Bill 1523, Katherine M. Franke, Michèle Alexandre, Deborah A. Challener, Judith J. Johnson, Richard Gershon, Elizabeth A. Sepper, Noa Ben-Asher, Daria Roithmayr, Nomi M. Stolzenberg

Faculty Scholarship

As legal scholars with expertise in matters of religious freedom, civil rights, and the interaction between those fields, we offer our opinion on the scope and meaning of Mississippi House Bill 1523, which was signed into law today by Governor Phil Bryant. Specifically, we wish to call attention to language in the law that we believe conflicts with the Establishment Clause of the U.S. Constitution. We share the view of Justice Kennedy when he expressed that “a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest,” and would add that neither can …

Risky Arguments In Social-Justice Litigation: The Case Of Sex Discrimination And Marriage Equality, Suzanne B. Goldberg

Faculty Scholarship

This Essay takes up the puzzle of the risky argument or, more precisely, the puzzle of why certain arguments do not get much traction in advocacy and adjudication even when some judges find them to be utterly convincing. Through a close examination of the sex discrimination argument's evanescence in contemporary marriage litigation, this Essay draws lessons about how and why arguments become risky in social-justice cases and whether they should be made nonetheless. The marriage context is particularly fruitful because some judges, advocates, and scholars find it "obviously correct" that laws excluding same-sex couples from marriage discriminate facially based on …

Sticky Intuitions And The Future Of Sexual Orientation Discrimination, Suzanne B. Goldberg

Faculty Scholarship

As once-accepted empirical justifications for discriminating against lesbians and gay men have fallen away, the major stumbling block to equality lies in a set of intuitions, impulses, and so-called common sense views regarding sexual orientation and gender. This Article takes up these impulses and views, which I characterize as "sticky intuitions," to consider both their sustained influence and the prospects for their destabilization. In this effort, I first offer a framework for locating the intuitions' work within contemporary doctrine, culture, and politics. I then advance an extended typology of the intuitions themselves, drawing from case law, scholarly literature, and public …

(E)Racing Jennifer Harris: Sexuality And Race, Law And Discourse In Harris V. Portland, Kristine E. Newhall, Erin E. Buzuvis

Faculty Scholarship

In 2007 Penn State basketball coach Rene Portland retired shortly after a confidential settlement ended a discrimination lawsuit brought by former player Jennifer Harris against Portland and Penn State. Because of Portland's infamous policy of not allowing lesbians on her team, her departure was celebrated as a victory against homophobia in sports. Yet although Harris's claims of sexual orientation discrimination were validated in the media, her allegations of racial discrimination were ignored or dismissed as implausible. In this Article, the authors examine the omission of race from the discourse surrounding this case and suggest that both legal and cultural factors …

Equality Opportunity: Marriage Litigation And Iowa's Equal Protection Law, Suzanne B. Goldberg

Faculty Scholarship

Discrimination claims against longstanding rules invite the public and the courts to rethink the status quo and address overarching legal and social commitments to equality together with questions specific to the case at hand. Lawsuits seeking marriage rights for same-sex couples quintessentially illustrate this multilayered nature of law reform litigation, as the debates they provoke focus not only on the rights of same-sex couples but also on the meaning of marriage and the meaning of equality more generally. While few other than lawyers, judges, and perhaps some reporters actually read the equal protection and due process arguments that the presiding …

Intuition, Morals, And The Legal Conversation About Gay Rights, Suzanne B. Goldberg

Faculty Scholarship

When lawyers and judges converse in litigation, factual and legal analysis typically takes center stage. Yet, when the legal conversation turns to the rights of lesbians, gay men, and bisexuals, the ground shifts. Intuition and morals rationales often displace evidence-based reasoning. More specifically, arguments to limit the rights of lesbians and gay men tend to depend explicitly on intuition, and sometimes morality, in ways that contemporary arguments to restrict the rights of other social groups rarely do.

In addressing this dissonance, this essay has two central aims. The first is simply to observe the disproportionate openness to arguments based on …

Lawrence & The Road From Liberation To Equality, Suzanne B. Goldberg

Faculty Scholarship

To think about the future of lesbian and gay rights in the wake of Lawrence v. Texas, we inevitably need to look to the past. After all, the movement that first sparked efforts to challenge statutes like the Texas "Homosexual Conduct" law was not a rights movement at all. Instead, when lesbian, gay, bisexual, and transgender individuals began organizing in 1969, their rallying cry was for liberation. To gauge what Lawrence means, then, we need to think in terms of both liberation, as the movement's early aim, and legal equality, which is the dominant demand of today's activists and advocates. …

On Making Anti-Essentialist And Social Constructionist Arguments In Courts, Suzanne B. Goldberg

Faculty Scholarship

One of my most intense disagreements with another lawyer during nearly a decade of lesbian and gay rights litigation concerned social constructionism. The lawyer (a law professor, if truth be told) wanted to argue in an amicus brief to the United States Supreme Court that sexual orientation, like race, was a social constructed category. He reasoned that since the Court had condemned race discrimination even while recognizing the "socio-political, rather than biological" nature of race, it would similarly be willing to invalidate a measure discriminating against lesbians, gay men and bisexuals, even while recognizing the socially constructed nature of sexual …

Parallel Lives: Women's Rights And Lesbian Rights Litigation, Suzanne B. Goldberg

Faculty Scholarship

I love the title of this panel because it gave me a chance to think about the historical themes and emerging issues in law related to women's rights, which of course is a mere endless set of possibilities.

I spent much of the last decade doing lesbian and gay civil rights litigation, and the question that I will focus on today grows out of that work and is a comparative one or at least a relational one. The question is this: What is the relationship between women's rights litigation as it has evolved in the last thirty years and lesbian …

Gender Sex Agency And Discrimination: A Reply To Professor Abrams, Katherine M. Franke

Faculty Scholarship

According to the Equal Employment Opportunity Commission, sexual harassment is the fastest-growing area of employment discrimination. In fact, the annual number of sexual harassment complaints filed with the EEOC has more than doubled in the last six years. No one, or at least no one who has given this problem her serious attention, can deny that workplace sexual harassment is a grave problem and that it significantly impedes women's entrance into many sectors of the wage labor market.

Notwithstanding these impressive numbers, sexual harassment legal doctrine remains remarkably undertheorized – particularly by the Supreme Court. For these and other reasons, …

Gay Rights Through The Looking Glass: Politics, Morality, And The Trial Of Colorado's Amendment 2, Suzanne B. Goldberg

Faculty Scholarship

Courts have long struggled to resolve the question of how far a community may go in exercising its power to treat minority members differently. Popular prejudice, "community morality" and invidious stereotypes repeatedly have had their day in court as judges work to reconcile equal protection and privacy rights with their own attitudes about the place of people of color, women and gay people in society. In the early 1990s, the tension between the American ideal of equality and the reality of human diversity starkly emerged. A national wave of citizen-sponsored initiatives seeking to amend state constitutions and local charters to …

Violence Against Lesbians And Gay Men, Suzanne B. Goldberg, Bea Hanson

Faculty Scholarship

Faggot! Dyke! Pervert! Homo!" Just words? Or rhetoric that illuminates and fuels hatred of lesbians and gay men? How often are these words supplemented by the use of a bat, golf clubs, a hammer, a knife, a gun? Studies indicate that lesbians and gay men experience criminal victimization at rates significantly higher than other individuals and are the most frequent victims of bias crime.

Since lesbians and gay men live all across the country – in large cities, small towns, and rural areas – we can be targets of bias crime no matter where we live. From the attacks against …