Law Commons^™

Bigotry, Prophecy, Religion, And The Race Analogy In Marriage And Civil Rights Battles: Responding To Commentaries On Who's The Bigot?, Linda C. Mcclain

Faculty Scholarship

One of the most rewarding parts of writing a book is that it opens the door for constructive conversation with thoughtful and perceptive readers like the scholars who generously contributed to this book symposium. Their various essays touch on and offer powerful insights about the core concerns that I had when I wrote Who’s the Bigot? Learning from Conicts over Marriage and Civil Rights Law. They offer thoughtful empirical and normative observations and surface useful questions about important future investigations. Were I able to write a next chapter—or a sequel—all these commentaries would shape its content. As it is, I …

A “Woman’S Best Right”—To A Husband Or The Ballot?: Political And Household Governance In Anthony Trollope’S Palliser Novels, Linda C. Mcclain

Faculty Scholarship

The year 2020 marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the U.S. Constitution. In 2018, the United Kingdom marked the one hundredth anniversary of some women securing the right to vote in parliamentary elections and the ninetieth anniversary of women securing the right to vote on the same terms as men. People observing the Nineteenth Amendment’s centenary may have difficulty understanding why it required such a lengthy campaign. One influential rationale in both the United Kingdom and the United States was domestic gender ideology about men’s and women’s separate spheres and destinies. This ideology …

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 …

Stays, Portia Pedro

Faculty Scholarship

After judges issue orders or judgments, they often face the difficult task of making a determination even more complex than that of the underlying order, but in less time, with less guidance, and with high stakes. These judges are deciding whether to grant a stay pending appeal — whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Although stays may seem to be a mere procedural technicality, stays are, instead, the new battleground for injunctive litigation. While review was pending, stay determinations have decided if abortion providers could operate in Texas, …

Obama's Conversion On Same-Sex Marriage: The Social Foundations Of Individual Rights, Robert L. Tsai

Faculty Scholarship

This essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working …

Formative Projects, Formative Influences: Of Martha Albertson Fineman And Feminist, Liberal, And Vulnerable Subjects, Linda C. Mcclain

Faculty Scholarship

This essay, contributed to a symposium on the work of Professor Martha Albertson Fineman, argues that Fineman is a truly generative and transformative scholar, spurring people to think in new ways about key terms like “dependency,” “autonomy,” and “vulnerability” and about basic institutions such as the family and the state. It also recounts Fineman’s role in creating spaces for the generation of scholarship by others. The essay traces critical shifts in Fineman’s scholarly concerns, such as from a theory of dependency to vulnerability theory and from a gender lens to a skepticism about a focus on identities and discrimination. In …

Bureaucracy As The Border: Administrative Law And The Citizen Family, Kristin Collins

Faculty Scholarship

This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating …

Reading Deboer And Obergefell Through The "Moral Readings Versus Originalisms" Debate: From Constitutional "Empty Cupboards" To Evolving Understandings, Linda C. Mcclain

Faculty Scholarship

This article assesses the debate over “moral reading” and “originalist” approaches to constitutional interpretation by evaluating the momentous constitutional controversy in the United States over access by same-sex couples to civil marriage. Justice Kennedy’s landmark opinion in Obergefell v. Hodges (2015), which held that such couples have a fundamental right to marry, employed a “moral reading” in emphasizing dual forms of evolving understanding: of constitutional guarantees of equality and the “promise of liberty” and of the institution of marriage. By contrast to the dissenters, the majority rejected a static, narrow reading of the fundamental right to marry – and marriage …

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 …

The Family, The State, And American Political Development As A Big Tent: Asking Basic Questions About Basic Institutions, Linda C. Mcclain

Faculty Scholarship

This article, contributed to a symposium on “The Family, the State, and American Political Development”, evaluates the proposition that the relationship between the basic institutions of the family and the state should be more central to the study of American political development (“APD”). It argues that, happily, such relationship is no longer as neglected by scholars as it once was, but that much work remains to be done. The article begins by comparing parallel efforts by pioneering feminist political and legal theorists to put on the table such issues as the public/private distinction between the polity and the family, assumptions …

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 …

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 …

The Intersection Of Civil And Religious Family Law In The U.S. Constitutional Order: A Mild Legal Pluralism, Linda C. Mcclain

Faculty Scholarship

This chapter considers how civil and religious family law intersect in the U.S. legal system and how U.S. constitutional law shapes and constrains the accommodation of religious pluralism as it pertains to family law. To the question, “Is there too much or too little pluralism in U.S. family law?,” I answer that family law appropriately embraces a mild legal pluralism, while clearly distinguishing between civil and religious marriage. After illustrating this distinction in the context of the recent controversy over same-sex marriage, I consider two categories of cases: (1) cases in which courts consider whether to enforce terms of Jewish …

Is There A Way Forward In The 'War Over The Family'?, Linda C. Mcclain

Faculty Scholarship

When Judge Posner, in Baskin v. Bogan, expressed incredulity -- given actual demographic trends in family formation -- that state marriage laws excluding same-sex couples furthered interests in “channeling” procreative sex and addressing accidental pregnancy, he brought together two conversations about marriage, family law, and family life that too often proceed independently. In the first, same-sex couples challenging marriage laws and the courts who rule in their favor emphasize the high stakes of exclusion by characterizing marriage as an incomparable institution and a signal that one’s intimate commitment is worthy of equal respect and dignity. To be left out of …

Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain

Faculty Scholarship

This Article engages with Ronald Dworkin’s final book, Religion Without God, which proposes to shrink the size and importance of the fierce “culture wars” in the United States between believers and nonbelievers – theists and atheists – by separating out the “science” and “value” components of religion to show these groups that they share a “fundamental religious impulse.” Religion Without God also calls for framing religious freedom as part of a general right to ethical independence rather than a “troublesome” special right for religious people. This article compares the argumentative strategy of Religion Without God with prior Dworkin works, such …

Illegitimate Borders: Jus Sanguinis Citizenship And The Legal Construction Of Family, Race, And Nation, Kristin Collins

Faculty Scholarship

The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real differences” between men and women. Based on extensive archival research, this Article demonstrates …

Common And Uncommon Families In The American Constitutional Order, Linda C. Mcclain

Faculty Scholarship

This essay reviews Professor Mark E. Brandon’s aptly named book, States of Union: Family and Change in the American Constitutional Order, which challenges the familiar story that the U.S. constitutional and political order have rested upon a particular, unchanging form of family – monogamous, heterosexual, permanent, and reproductive – and on the family values generated by that family form. That story also maintains that such family form and the legal norms that sustained it remained relatively undisturbed for centuries until the dramatic transformation spurred in part, beginning the 1960s, by the U.S. Supreme Court’s constitutionalizing of family and marriage through, …

A Room With Many Views: A Response To Essays On According To Our Hearts: Rhinelander V. Rhinelander And The Multiracial Family, Angela Onwuachi-Willig

Faculty Scholarship

At the outset, l should note that I am very grateful to all contributors in this issue-Professors Kerry Abrams, Jacquelyn Bridgeman, Jennifer Chacon, Robin Lenhardt, and Laura Rosenbury for their insightful, powerful, and stirring reactions to my book According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family, and to Professor Melissa Murray for her elegant Foreword to this issue. Reading the responses of these scholars whom I admire and respect has been exhilarating and affirming. Indeed, seeing the many ways in which just a small group of these reviewers have examined, interpreted, and even "felt" …

The Other Marriage Equality Problem, Linda C. Mcclain

Faculty Scholarship

This article introduces the term “the other marriage equality problem” to invite attention to a marriage equality issue distinct from gay men's and lesbians’ access to the institution of civil marriage. That problem is captured in warnings about the growing class-based marriage divide and the “diverging destinies” of children that flow from these emerging patterns of family life, sometimes referred to as “the reproduction of inequalities.” Growing family inequality warrants attention for many reasons, including the crucial role that families, along with other institutions of civil society, play in sustaining the American experiment in “ordered liberty.” Strikingly, such warnings coexist …

What Would Be The Story Of Alice And Leonard Rhinelander Today?, Angela Onwuachi-Willig

Faculty Scholarship

On November 8, 2011, I presented this lecture as part of the annual Brigitte M. Bodenheimer Family Law Lecture Series at the University of California, Davis School of Law. I extend sincere thanks to the Bodenheimer family for endowing this special lecture. I feel honored to be a small part of this wonderful lecture series in family law. I feel particularly grateful because the University of California, Davis School of Law was my "birthplace" as a professor. Dean Rex Perschbacher, then Associate Dean Kevin Johnson, and the law school faculty welcomed me into academia by giving me my first job …

From Romer V. Evans To United States V. Windsor: Law As A Vehicle For Moral Disapproval In Amendment 2 And The Defense Of Marriage Act, Linda C. Mcclain

Faculty Scholarship

This article considers the intertwined fates of Romer v. Evans and the Defense of Marriage Act (DOMA), which both date back to 1996. In United States v. Windsor, Justice Kennedy, writing for the majority, struck down Section 3 of DOMA, using Romer as a template. This article reflects on Romer as it bears on the use of law as a vehicle to express morality, in particular, “moral disapproval of homosexuality” and moral approval -- and the defense and nurture -- of “traditional, heterosexual marriage.” Proponents of Amendment 2 (struck down in Romer, in an opinion written by Justice Kennedy) and …

A Diversity Approach To Parenthood In Family Life And Family Law, Linda C. Mcclain

Faculty Scholarship

Extraordinary changes in patterns of family life and family law have dramatically altered the boundaries of parenthood and opened up numerous questions and debates. What is parenthood and why does it matter? How should society define, regulate, and support it? Is parenthood separable from marriage or couplehood when society seeks to foster childrens well-being? What is the better model of parenthood from the perspective of child outcomes? Intense disagreements over the definition and future of marriage often rest upon conflicting convictions about parenthood. What Is Parenthood? asks bold and direct questions about parenthood in contemporary society, and it brings together …

Revisiting Mary Ann Glendon: Abortion, Divorce, Dependency, And Rights Talk In Western Law, Linda C. Mcclain, Margaret F. Brining

Faculty Scholarship

This essay revisits Mary Ann Glendon’s comparative law study, Abortion and Divorce in Western Law and her subsequent book, Rights Talk: The Impoverishment of Political Discourse. Glendon’s comparative study actually included a third topic: “forms of dependency which are connected with pregnancy, marriage, and child raising.” The topic of dependency has obvious relevance to consideration of intergenerational obligations and the interplay between family responsibility and societal responsibility for addressing dependency needs.

A central claim Glendon made in both books is that the U.S. legal tradition is “libertarian,” views individuals as “lone rights bearers,” and exalts the “right to be let …

What Is Parenthood?: Contemporary Debates About The Family Introduction, Linda C. Mcclain, Daniel Cere

Faculty Scholarship

Extraordinary changes in patterns of family life – and family law – have dramatically altered the boundaries of parenthood and opened up numerous questions about debates. What is parenthood and why does it matter? How should society define, regulate, and support it? Despite this uncertainty, the intense focus on the definition and future of marriage diverts attention from parenthood. Demographic reports suggesting a shift away from marriage and toward alternative family forms also keep marriage in constant public view, obscuring the fact that disagreements about marriage are often grounded in deeper, conflicting convictions about parenthood. This book (as the posted …

Marriage Pluralism, Family Law Jurisdiction, And Sex Equality In The United States, Linda C. Mcclain

Faculty Scholarship

In many regions of the world, rights guaranteed under the civil law, including rights to gender equality within marriage and rights in the distribution of family property and child custody upon divorce, are in conflict with the principles of religious law. Women's rights issues are often at the heart of these tensions, which present pressing challenges for theorists, lawyers, and policymakers. This anthology brings together leading scholars and activists doing innovative work in Jewish law, Muslim law, Christian law, and African customary law. Using examples drawn from a variety of nations and religions, they interrogate the utility of recent theoretical …

Nature, Culture, And Social Engineering: Reflections On Evolution And Equality, Linda C. Mcclain

Faculty Scholarship

This book chapter explores evolution and morality by considering the appeal to nature, and in particular to how evolution has shaped female and male brains differently, to explain evident sex differences and the persistence of sex inequality. It uses as illustrative the popularizing accounts of male and female brains found in Louann Brizendine, The Female Brain and The Male Brain, and the portrayal in such accounts of fundamental male and female differences in human mate selection and parenting. Drawing on the work of scientist and philosophers, the chapter critiques these accounts for engaging in an increasingly popular “neurosexism.” Such neurosexism …

Respecting Freedom And Cultivating Virtues In Justifying Constitutional Rights, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

What’s new in the long-standing debate between civic republicans and liberals about how best to understand and justify rights? This article picks up the thread with political philosopher Michael Sandel’s recent, internationally-renowned book, Justice: What’s the Right Thing To Do? The article evaluates the sharp contrasts his book draws between justice as cultivating virtues and justice as respecting freedom, using his example of contemporary arguments for and against opening up civil marriage to same-sex couples. Sandel contends that “liberal neutrality” and a public square denuded of religious arguments and convictions are impossible on this issue. Drawing on Aristotle, he contends …

Child, Family, State, And Gender Equality In Religious Stances And Human Rights Instruments: A Preliminary Comparison, Linda C. Mcclain

Faculty Scholarship

The UN Convention on the Rights of the Child (CRC) recently began its third decade. Why has the United States still not ratified the CRC, celebrated as the most widely ratified international human rights treaty in history? Once again, this question is on the table: Congressional resolutions that President Obama should not transmit the CRC to the Senate for advice and consent rapidly followed intimations that the Obama Administration had some qualms about the U.S. keeping company only with Somalia in not ratifying it. Some scholars contend that enlisting the unique resources of religions would help to ground a culture …

What's So Hard About Sex Equality?: Nature, Culture, And Social Engineering, Linda C. Mcclain

Faculty Scholarship

Why is sex equality so hard to achieve? Social cooperation between women and men in various domains of life is assumed to be a fundamental and necessary building block of society, but proves hard to secure on terms of equality. One answer is that feminist quests for equality in private and public life are a form of misguided social engineering that ignores natural sex difference. This chapter examines arguments that nature and culture constrain feminist law reform. Appeals to nature argue that brain science and evolutionary psychology find salient differences between women and men, limiting what social engineering can achieve …