Civil Rights and Discrimination Commons^™

There Are No Racists Here: The Rise Of Racial Extremism, When No One Is Racist, Jeannine Bell

Articles by Maurer Faculty

At first glance hate murders appear wholly anachronistic in post-racial America. This Article suggests otherwise. The Article begins by analyzing the periodic expansions of the Supreme Court’s interpretation of the protection for racist expression in First Amendment doctrine. The Article then contextualizes the case law by providing evidence of how the First Amendment works on the ground in two separate areas — the enforcement of hate crime law and on university campuses that enact speech codes. In these areas, those using racist expression receive full protection for their beliefs. Part III describes social spaces — social media and employment where …

Abortion And Compelled Physician Speech, David Orentlicher

Scholarly Works

No abstract provided.

A Word Of Warning From A Woman: Arbitrary, Categorical, And Hidden Religious Exemptions Threaten Lgbt Rights, Leslie C. Griffin

Scholarly Works

Religious exemptions have already undermined women’s rights. Now exemptions threaten gays and lesbians. The Constitution protected women’s equality and liberty until religious exemptions eroded them. Today, as gays and lesbians stand on the threshold of marriage equality, religious exemptions threaten to diminish their hard-earned constitutional right. For this reason, I argue it is past time to reject the religious exemption theory of religious liberty, which privileges religion over civil and constitutional rights, in favor of neutral laws that govern all. Religious exemptions pervade American law in numerous ways that are harmful to civil rights.

In this essay, I identify three …

Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan

Scholarly Works

Citizens United v. FEC articulated a new pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. This new doctrine has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This article explores the …

Regulating Drones Under The First And Fourth Amendments, Marc Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai

Faculty Articles

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September of this year. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Ultimately, given UAV utility and cost effectiveness over a vast range of tasks, widespread commercial use seems certain. So it is imperative …

Ties That Bind? The Questionable Consent Justification For Hosanna-Tabor, Jessie Hill

Northwestern University Law Review

Arguments in favor of religious sovereignty often emphasize the benefits of autonomy for religious institutions while ignoring the civil rights of individuals who belong to or work for those institutions. To justify intrusions on individual civil rights, proponents of strong religious autonomy generally rely on the concept of implied consent. According to this rationale, individuals willingly give up the protection of civil rights laws when they voluntarily join religious organizations. This Essay responds to one scholar’s account of the consent rationale as undergirding the Supreme Court’s recognition of the ministerial exception: Christopher Lund’s excellent article, Free Exercise Reconceived: The Logic …

An Immovable Object And An Unstoppable Force: Reconciling The First Amendment And Antidiscrimination Laws In The Claybrooks Court, Erin A. Shackelford

Vanderbilt Journal of Entertainment & Technology Law

This Note broadly addresses the problem of racial stereotyping and racial roles in the media. It is viewed through the lens of Claybrooks v. ABC, Inc., a recent federal district court decision of first impression. In Claybrooks, the court dismissed the plaintiffs discrimination claims, ruling that casting decisions were protected under the First Amendment. This Note will address the problem of racial discrimination by focusing on racial misrepresentations in the media and the role of reality television programs in that landscape. Specifically, this Note will propose a new solution for the Claybrooks court. This analysis will assert that cast members …

First Amendment Decisions - 2002 Term, Joel Gora

Touro Law Review

No abstract provided.

Neutral Discrimination – Selective Enforcement Of Religiously Neutral Laws And The First Amendment, Jeffrey Gautsche

Touro Law Review

No abstract provided.

Learning Lessons From Multani: Considering Canada's Response To Religious Garb Issues In Public Schools, Allison N. Crawford

Georgia Journal of International & Comparative Law

No abstract provided.

The Conservative-Libertarian Turn In First Amendment Jurisprudence, Steven J. Heyman

West Virginia Law Review

No abstract provided.

An Examination Of University Speech Codes’ Constitutionality And Their Impact On High-Level Discourse, Benjamin Welch

College of Journalism and Mass Communications: Theses

The First Amendment – which guarantees the right to freedom of religion, of the press, to assemble, and petition to the government for redress of grievances – is under attack at institutions of higher learning in the United States of America. Beginning in the late 1980s, universities have crafted “speech codes” or “codes of conduct” that prohibit on campus certain forms of expression that would otherwise be constitutionally guaranteed. Examples of such polices could include prohibiting “telling a joke that conveys sexism,” or “content that may negatively affect an individual’s self-esteem.” Despite the alarming number of institutions that employ such …

The "Moral Hazards" Of Title Vii's Religious Accomodation Doctrine, Stephen Gee

Chicago-Kent Law Review

Freedom of religion in the workplace has recently become a hot topic with regards to whether U.S. or state laws (mainly contraceptive care and treatment of same-sex, married employees’ spouses) must accommodate certain employer’s religious beliefs or else violate the employer’s constitutional right. However, before this recent employer-centric topic came to light, the main focus was on employees and to what extent employers must accommodate an employee’s religion via Title VII. Most, if not all, academic literature has argued an employer’s duty to accommodate employee’s religion is too weak under Title VII and should thus be increased to the significant …

Supreme Court, Sullivan County, Holman V. Goord, Eric Pack

Touro Law Review

No abstract provided.

Criminal Procedure Decisions From The October 2006 Term, Susan N. Herman

Touro Law Review

No abstract provided.

First Amendment Decisions From The October 2006 Term, Erwin Chemerinsky, Marci A. Hamilton

Touro Law Review

No abstract provided.

An Overview Of The October 2006 Supreme Court Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.

Globally Speaking—Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta Esperanza Hernández-Truyol

Michigan Law Review First Impressions

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States' First Amendment provides an early historical protection of speech-a safeguard now embraced around the world. The extent of this protection, however, varies among states. The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

The Lawless Rule Of The Norm In The Government Religious Speech Cases, Kyle Langvardt

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

What You Sign Up For: Public University Restrictions On “Professional” Student Speech After Tatro V. University Of Minnesota, William Bush

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe

Cornell Law Faculty Publications

When should a constitutional democracy allow private associations to discriminate? That question has become prominent once again, not only in the United States but abroad as well. John Inazu provides a provocative answer in his impressive Article, The Four Freedoms and the Future of Religious Liberty. According to his proposal, “strong pluralism,” associations should have a constitutional right to limit membership on any ground, including race. Strong pluralism articulates only three limits: It does not apply to the government, to commercial entities, or to monopolistic groups. In this Response, I raise four questions about Four Freedoms. First, I ask why …

Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin

Faculty Scholarship

No abstract provided.

A Primer On Hobby Lobby: For-Profit Corporate Entities' Challenge To The Hhs Mandate, Free Exercise Rights, Rfra's Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Faculty Scholarship

No abstract provided.

Government Endorsement: A Reply To Nelson Tebbe's Government Nonendorsement, Abner S. Greene

Faculty Scholarship

In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center,

Religious Exceptionalism And Human Rights, Laura S. Underkuffler

Cornell Law Faculty Publications

The liberal-democratic governmental compact assures that citizenship, political power, and civic participation in all of its forms will be afforded to all citizens on an equal basis. In particular, simple identity—as a presumptive matter—cannot be the basis for the denial of human rights. It is on this simple yet elegant principle that all civil-rights laws are founded.

Freedom of religion presents a particularly complex problem in this context. On the one hand, it is—itself—a universally recognized member of the human rights family, and is protected under civil-rights laws. On the other hand, it is— because of its possible invocation by …

Federally Recognized Rights Of Lgbtq Students To Form Gay-Straight Alliance Organizations (Gsas), Jerry Foxhoven

Cardozo Law Review de•novo

The purpose of this article is to explore the various avenues that have been used in the federal courts to ensure the right to organize Gay Straight Alliances (GSAs), and to detail the use of the federal courts by students who assert the right to express contrary views on sexual orientation issues.

The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos

Articles

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the …

Hobby Lobby In Constitutional Waters: Two Life Rings And An Anchor, Gregory P. Magarian

Scholarship@WashULaw

Hobby Lobby's challenge to the contraception coverage provision of the Patient Protection and Affordable Care Act is the first Supreme Court case to test an application of RFRA to a federal law. For an introductory case, Hobby Lobby pushes RFRA·s conceptual envelope. Never before, under any constitutional or statutory provision, has the Court exempted a private, for profit business from the obligation to obey a generally applicable law. Most successful religious accommodation claims, whether constitutional or tatutory, have involved individual religious believers or groups of similarly situated believers. Religious institutions have occasionally but less frequently brought successful accommodation claims. Whatever …

A Tale Of Two Rights, Robin West

Georgetown Law Faculty Publications and Other Works

In part I of this article the author identifies and criticizes a cluster of constitutional rights, which she argues does tremendous and generally unreckoned harm to civil society, and does so for reasons poorly articulated in earlier critiques. At the heart of the new paradigm of constitutional rights that the author believes these rights exemplify is a “right to exit.” On this conception of individual rights, a constitutional right is a right to “opt out” of some central public or civic project. This understanding of what it means to have a constitutional right hit the scene a good two decades …

Invisible Women: Why An Exemption For Hobby Lobby Would Violate The Establishment Clause, Frederick Mark Gedicks, Andrew Koppelman

Faculty Scholarship

Can an employer make his employees foot the bill for his religious beliefs? Merely to ask this question is to answer it. “Religious liberty” does not and cannot include the right to impose the costs of observing one's religion on someone else. Indeed, the Supreme Court has consistently interpreted the Free Exercise Clause, the Establishment Clause, and Title VII of the Civil Rights Act of 1964 to forbid permissive accommodations of religion in the for-profit workplace when they impose significant burdens on identifiable and discrete third parties.

In Sebelius v. Hobby Lobby Stores, Inc., however, an employer is claiming that …