Law Commons^™

Reclaiming Establishment: Identity And The ‘Religious Equality Problem’, Faraz Sanei

Faculty Scholarship

Since at least 2017, the Court has implicitly recognized a right of equal access to generally available public benefits based on the beneficiary's religious identity or status. In Carson v. Makin (2022), the Court went a step further and, for the first time, concluded that the “status-use distinction lacks a meaningful application” in both theory and practice. It then held that restrictions on the use of public benefits for sacral purposes amount to religious discrimination because they impose substantial burdens on free exercise rights. Carson's holding, and the rationale underlying it, contravene settled case law and effectively gut the Establishment …

The Strict Scrutiny Of Black And Blaqueer Life, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …

Furtive Blackness: On Blackness And Being, T. Anansi Wilson

Faculty Scholarship

Furtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law …

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) …

Mapping A Post-Shelby County Contingency Strategy, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

This Essay was written for the Yale Law Journal Online Symposium on the future of section 5 of the Voting Rights Act after Shelby County v. Holder. Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights …

The New Textualism, Progressive Constitutionalism, And Abortion Rights: A Reply To Jeffrey Rosen, Neil S. Siegel

Faculty Scholarship

No abstract provided.

Racial Cartels And The Thirteenth Amendment Enforcement Power, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

The Unsettling ‘Well-Settled’ Law Of Freedom Of Association, John D. Inazu

Faculty Scholarship

This article brings historical, theoretical, and doctrinal critiques to bear upon the current framework for the constitutional right of association. It argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. Intimate association and expressive association are indefensible categories, but they matter deeply. They matter to the Jaycees. They matter to the Chi Iota Colony of the Alpha Epsilon Pi fraternity, a now defunct Jewish social group at the College of Staten Island that had sought to limit its membership to men. They …

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 …

Truth Matters: A Call For The American Bar Association To Acknowledge Its Past And Make Reparations To African Descendants, Adjoa A. Aiyetoro

Faculty Scholarship

No abstract provided.

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Faculty Scholarship

This Article offers an account of how courts respond to social change, with a specific focus on the process by which courts "tip" from one understanding of a social group and its constitutional claims to another. Adjudication of equal protection and due process claims, in particular, requires courts to make normative judgments regarding the effect of traits such as race, sex, sexual orientation, or mental retardation on group members' status and capacity. Yet, Professor Goldberg argues, courts commonly approach decisionmaking by focusing only on the 'facts" about a social group, an approach that she terms 'fact-based adjudication." Professor Goldberg critiques …

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

In Defense Of Deference, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

Foreword: The Legal History Of The Great Sit-In Case Of Bell V. Maryland, William L. Reynolds

Faculty Scholarship

Reviews the environment and history of the 1960 Baltimore sit-in case that eventually made its way to the United States Supreme Court.

An Overview Of The Arkansas Civil Rights Act Of 1993, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

Aids, Astrology, And Arline: Towards A Causal Interpretation Of Section 504, Gary S. Lawson

Faculty Scholarship

Section 504 of the Rehabilitation Act of 1973 provides that ‘[n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program].’1 In School Board v. Arline,2 the Supreme Court held that a school teacher with a history of infectious tuberculosis was an ‘individual with handicaps' protected by section 504,3 and that the determination of whether she was ‘otherwise qualified’ to teach elementary school required a sound medical assessment of the risks …

Exclusionary Land Use Controls And The Takings Issue, Robert R. Wright

Faculty Scholarship

No abstract provided.

Constitutional Rights And Land Use Planning: The New And The Old Reality, Robert R. Wright

Faculty Scholarship

No abstract provided.

A Constitution For Every Man, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

The O’Meara Case And Constitutional Requirements Of State Anti-Discrimination Housing Laws, William W. Van Alstyne

Faculty Scholarship

Against the backdrop of the highly criticized O’Meara case, this comment explores the possible rational bases a state could use to support a differentiation between publicly-assisted and unassisted home owners. This comment also addresses the question of how substantial that rational bases must be in order to survive the requirements of equal protection.

Comment: Sit-Ins And State Action- Mr. Justice Douglas, Concurring, Kenneth L. Karst, William W. Van Alstyne

Faculty Scholarship

No abstract provided.