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Full-Text Articles in Law
Abandoning Animus, Robert L. Tsai
Abandoning Animus, Robert L. Tsai
Faculty Scholarship
This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the …
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
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. …
The Unnecessary And Unfortunate Focus On “Animus,” “Bare Desire To Harm,” And “Bigotry” In Analyzing Opposition To Gay And Lesbian Rights, James E. Fleming
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
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, Lauren Fontana, Tanya Washington, Barbara Bennett Woodhouse
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, Lauren 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 …
About Microaggressions, Ronald E. Wheeler
About Microaggressions, Ronald E. Wheeler
Faculty Scholarship
Professor Wheeler discusses the concepts of microaggressions (including micro-assaults, microinsults, and microinvalidations) specifically against LGBT individuals, and proposes some solutions for preventing microaggressions from occurring within one’s organization.
Stereotype Threat And Law Librarianship, Ronald E. Wheeler
Stereotype Threat And Law Librarianship, Ronald E. Wheeler
Faculty Scholarship
Mr. Wheeler looks at the concept of stereotype threat and discusses ways to confront and combat it in a diverse society. He proposes some simple solutions within the American Association of Law Libraries (AALL) and the law librarianship profession to help diminish the effects of this psychological barrier.
Democracy's Handmaid, Robert L. Tsai
Democracy's Handmaid, Robert L. Tsai
Faculty Scholarship
Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …
Parading Ourselves: Freedom Of Speech At The Feast Of St. Patrick, Larry Yackle
Parading Ourselves: Freedom Of Speech At The Feast Of St. Patrick, Larry Yackle
Faculty Scholarship
Three things are true. First, American society is now absorbed in yet another great civil rights movement, this one on behalf of gay, lesbian, and ambisexual citizens, which will lead ineluctably to the elimination of legal burdens on the basis of sexual orientation.' Change will come slowly, with much backing and filling, and at an awful price measured in human pain. Intolerance for the homosexualities that exist among us, and the homosexual behavior in which many of us engage, will persist in quarters where the law cannot reach.2 Yet private homophobia, deprived of legal sanction, will ultimately be discredited and …