Religious Liberty, Discriminatory Intent, and the Conservative Constitution

The Supreme Court shocked the world at the end of its 2021–22 term by issuing landmark decisions ending constitutional protection for abortion rights, expanding gun rights, and weakening what remained of the wall between church and state. One thread uniting these cases that captured the public’s attention is the rhetoric common of originalism—a backwards-looking theory of constitutional interpretation focused on founding-era meaning and intent. This Article identifies the discriminatory intent doctrine as another powerful tool the Court is using to protect the social norms and hierarchies of a bygone era, and to build a conservative Constitution. Discriminatory intent rose to prominence during the Burger and Rehnquist Courts through the development of rules requiring intent, rigidly defining intent, and limiting the evidence relevant to prove intent. Application of these rules in equal protection claims often shielded legal structures from reproach that disadvantage women and people of color. By contrast, today’s Court is revisiting and radically reinterpreting these rules in ways that favor conservative religious adherents in First Amendment claims. In Free Exercise Clause cases brought by conservative Christians challenging seemingly religiously neutral and generally applicable laws, the Court has credited allegations of discriminatory intent on thin evidentiary records. Additionally, the Court has crafted a new strict rule designed to prevent even the possibility that discriminatory intent could creep into future decision-making—even when no evidence of actual bias presently exists. Meanwhile, the Court in Establishment Clause claims has abandoned longstanding intent rules prohibiting favoritism or hostility towards religion; instead, the sole relevant question is now whether founding-era practices support the government’s religious involvement. These emerging and conflicting roles for discriminatory intent in the Religion Clauses leave religious minorities and non-believers with diminished constitutional protection, while insulating the Christian right from perceived victimization by progressive forces who have sought to stem a global pandemic, promote reproductive rights, and prevent discrimination against LGBTQ individuals

The Charles C. Wise Library : a retrospective

The Charles C. Wise Library: A Retrospective presents the fascinating story of the “tremendous setting for learning” and contains beautiful photographs documenting the library’s growth from 1931 to 2006

Rural Resentment and LGBTQ Equality

In 2015, the U.S. Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage. Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of anti-LGBTQ bills. Obergefell may have ended the legal debate over same-sex marriage, but it did not resolve the cultural divide. Many rural Americans, especially in predominately white communities, feel that they are under attack. Judicial opinions and legislation protecting LGBTQ people from discrimination are serious threats to rural dwellers because they conflict with several core tenets of rural identity: community solidarity, self-reliance, and compliance with religiously informed gender and sexual norms. This conflict is amplified by the relative invisibility of gay and transgender people who live in rural areas, and the predominantly urban media representations of gay and transgender people. In several respects, the conflict is merely perceived and is not real. It is at these junctures of perceived conflict that we can draw important lessons for bridging the cultural divide, thereby protecting LGBTQ people across geographic spaces. This Article examines the sources and modern manifestations of rural LGBTQ resentment to provide foundational insights for the ongoing fight to protect all vulnerable minorities. Pro-LGBTQ legislation and judicial opinions symbolize a changing America in which white rural inhabitants see their identities disappeqaring, devalued, and disrespected. The left, popularly represented in rural America as a group of urban elites, characterizes anti-LGBTQ views a bigoted, and many people in small towns feel victimized by this criticism. Drawing on a robust body of social science research, this Article suggests that these feelings of victimization lead to resentment when outside forces, like federal judges and state and big-city legislators, tell rural Americans how to act, think, and feel. Rural Americans resent undeserving minorities who have gained rights and recognition, in contrasts to the identities of, and at the perceived expense of, white, straight, working-class prestige. They resent that liberal, largely urban outsiders are telling them that they must change who they are to accomodate people they perceive as unlike them. Opposing LGBTQ rights is thus one mechanism to protect and assert rural identity. It is important to unearth and pay attention to white rural anti-LGBTQ resentment in the post-Obergefell era because it is part of a larger force animating conservation politics across the United States

Dignity, Inequality, and Stereotypes

In Obergefell v. Hodges, the Supreme Court held that same-sex marriage bans violate the Equal Protection Clause for two primary reasons. First, they subordinate; they send the message that lesbians and gays are inferior to heterosexuals. Second, they unequally deny lesbian and gay individuals the liberty to make fundamental decisions about identity and self. These two conjoined themes—anti-group subordination and pro-individual liberty—comprise the two pillars of “equal dignity” that anchor Obergefell’s holding. This Article proposes that these pillars also support the Court’s anti-stereotyping jurisprudence, and equal dignity is thus one important aspect of what the Equal Protection Clause protects. To illustrate: in sex discrimination cases, courts reject state stereotyping when it perpetuates ideas about men’s and women’s roles and reinforces women’s inferior social status; in transgender and sexual orientation discrimination cases, courts have begun to protect LGBTQ individuals from state demands for conformity to normative stereotypes about how to be a man or woman. Protecting individuals’ equal dignity can sometimes become complicated when the reasons for addressing a group’s purported needs elide individual concerns and attachments. For example, the government sometimes relies on normative and statistical information about groups to combat group-associated health and poverty risks, to remedy individual disparate treatment, and to prevent wholesale group exclusion from opportunities and civic duties. Addressing these group-based needs, however, may effectively perpetuate stereotypes about what group membership means. Individual group members may object to the identitarian implications of the government’s help. Not all stereotyping both subordinates a group and denies individuals the liberty to be and express who they are. Accordingly, stereotyping is not wrong in and of itself; how the government uses stereotypes should determine whether state action violates the Equal Protection Clause. Counterintuitively, stereotyping can sometimes promote rather than deny equal dignity. While any state reliance on stereotypes risks essentializing identity, an absolute stereotyping prohibition exacerbates certain forms of race, sex, and sexual orientation blindness. Groups are important, and the government requires some flexibility to address group-based needs

National assessment and planning for improved fish handling in Solomon Islands

The report summarizes the discussions and interviews with provincial fisheries officers (PFOs) at the annual PFO conference in Honiara, November 23, 2022.The report also identifies the next steps needed to build a program on fish handling based on input from participants at the Fish Innovation project reflection workshop in Nusatupe, May 16–19, 2023

Religious Liberty, Discriminatory Intent, and the Conservative Constitution

The Supreme Court shocked the world at the end of its 2021–22 term by issuing landmark decisions ending constitutional protection for abortion rights, expanding gun rights, and weakening what remained of the wall between church and state. One thread uniting these cases that captured the public’s attention is the rhetoric common of originalism—a backwards-looking theory of constitutional interpretation focused on founding-era meaning and intent. This Article identifies the discriminatory intent doctrine as another powerful tool the Court is using to protect the social norms and hierarchies of a bygone era, and to build a conservative Constitution. Discriminatory intent rose to prominence during the Burger and Rehnquist Courts through the development of rules requiring intent, rigidly defining intent, and limiting the evidence relevant to prove intent. Application of these rules in equal protection claims often shielded legal structures from reproach that disadvantage women and people of color. By contrast, today’s Court is revisiting and radically reinterpreting these rules in ways that favor conservative religious adherents in First Amendment claims. In Free Exercise Clause cases brought by conservative Christians challenging seemingly religiously neutral and generally applicable laws, the Court has credited allegations of discriminatory intent on thin evidentiary records. Additionally, the Court has crafted a new strict rule designed to prevent even the possibility that discriminatory intent could creep into future decision-making—even when no evidence of actual bias presently exists. Meanwhile, the Court in Establishment Clause claims has abandoned longstanding intent rules prohibiting favoritism or hostility towards religion; instead, the sole relevant question is now whether founding-era practices support the government’s religious involvement. These emerging and conflicting roles for discriminatory intent in the Religion Clauses leave religious minorities and non-believers with diminished constitutional protection, while insulating the Christian right from perceived victimization by progressive forces who have sought to stem a global pandemic, promote reproductive rights, and prevent discrimination against LGBTQ individuals

Urban Bias, Rural Sexual Minorities, and the Courts

This article examines the role of courts in rural sexual minorities’ lives. It focuses first on state action, explaining that courts’ failure to apply heightened scrutiny to sexual orientation classifications harms rural sexual minorities uniquely in family and employment law contexts, where judges explicitly invoke antigay rural norms to justify discriminatory treatment. It argues that by taking rural sexual minorities’ relative political powerlessness into account in Equal Protection claims, courts are more likely to find that all sexual orientation classifications are suspect. It focuses second on private discrimination, and it discusses ways to protect and strengthen rural sexual minorities’ privacy rights. It argues that privacy is central to protecting sexual minorities’ liberty to live, create families, and work in rural environments