The Feminist Movement’s State Action Doctrine

There is a conventional story of the state action doctrine. It begins with the Supreme Court’s 1883 decision in the The Civil Rights Cases, holding that Congress did not have the power to forbid discrimination in hotels, trains, and other places open to the public. In reaching that conclusion, the Court sharply distinguished between “wrongful acts of individuals”—which could not deprive Black people of their rights—and state action “in the shape of laws, customs, or judicial or executive proceedings”—which was subject to the due process and equal protection guarantees of the Fourteenth Amendment.1 Since that time, advocates struggled to show state involvement in discrimination in leisure, transport, and commerce. Through heroic efforts of the Black civil rights movement, the Court began to revise and soften the doctrine in the mid-twentieth century.2 For a brief period of time, Court watchers anticipated the twilight of state action; they saw emerging a more flexible and broader vision of equal protection duties.3 But that vision ended abruptly with the Burger Court. The Black civil rights movement of the 1960s had stretched state action to its limit.4 The 1970s and 1980s saw only retrenchment

The Role of Religion in State Public Accommodations Laws

In this Article, I provide a comprehensive account of the role of religion in public accommodations laws. I analyze public accommodations statutes across the fifty states, identify their boundaries, and categorize their religious exemptions. In so doing, I interrogate and debunk misconceptions widely held even by legal scholars that: the Civil Rights Act is a representative public accommodations law; antidiscrimination obligations of retail establishments and social service providers are unusual or new; exemptions for religious entities or small businesses are common; and public accommodations laws have as their central aim remedying market exclusion. Part I sets out the basic framework of public accommodations law. For-profit businesses—the baker, doctor, and wedding venue of ongoing debates over same-sex marriage refusals—are the prototypical public accommodations. Non-profit religious organizations similarly assume nondiscrimination duties when they serve the public. In what has been a stable public-private divide, the state regulates commercial and quasi-commercial entities in the interest of equality, while granting private associations license to discriminate. Part II demonstrates that public accommodations laws typically do not offer religious exemptions. When exemptions specific to religion exist, they tend to be limited to a narrow range of activities of religious non-profits and to co-religionist favoritism alone. This structure of limited or no religious exemptions remained intact through the decades, but cracks have recently appeared in the façade as states adopted religious exemptions related to sexual orientation (rarely) and marriage (commonly). Part III examines the purposes of public accommodations laws. Whereas proponents of religious exemptions frequently argue that such laws target only pervasive exclusion from the market, the text of the statutes sets out individual and societal interests far broader than material goods and target segregation and subordination within the market as well as exclusion from it. As a matter of textual analysis alone then, courts faced with claims for exemption under state religious freedom restoration acts must weigh exemption against interests in full and equal enjoyment of public life

Free Exercise of Abortion

For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they center women’s conscientious decisions for the first time in many decades. In law and religion circles, the predominant response has been skepticism. As claims for reproductive freedom have appeared, erstwhile supporters of expansive exemptions propose to raise the bar. They increase standards for religiosity, sow doubts about women’s sincerity, and argue for lightening the government’s burden. Constitutionally illicit stereotypes about women’s (in)capacity for moral agency, trustworthiness, and altruism seep into religious liberty arguments. These attacks on the free exercise of religious convictions about abortion implicitly—and sometimes expressly—advance religious preferentialism. They invite and expect the courts to reject pro-abortion religious claims even as they urge courts to treat anti-abortion convictions as sacrosanct. The consequence would be to exile some categories of religious people from religious liberty protections, while Christian conservatives gain systematic favor

Doctoring Discrimination in the Same-Sex Marriage Debates

As the legalization of same-sex marriage spreads across the states, some religious believers refuse to serve same-sex married couples. In the academy, a group of law and religion scholars frames these refusals as “conscientious objection” to the act of marriage. They propose “marriage conscience protection” that would allow public employees and private individuals or businesses to refuse to “facilitate” same-sex marriages. They rely on the theoretical premise that commercial actors’ objections to marriage are equivalent to doctors’ objections to controversial medical procedures. They model their proposal on medical conscience legislation, which allows doctors to refuse to perform abortions. Such legislation, they say, would dispel conflicts over same-sex marriage and lead to acceptance of gay couples’ relationships. This Article argues that same-sex marriage objections lack the distinct and compelling features of conscientious objection recognized by law. It offers the first systemic critique of medicine as a construct for the same-sex marriage debates. It demonstrates that legislative protection of conscientious objection traditionally has been limited to life-and-death acts for which the objector has direct responsibility and further justified in medicine by ethical commitments particular to the profession—bases that are absent from the marriage context. By identifying the theoretical foundation of conscientious objection protections, this Article provides the groundwork for distinguishing between conscience claims that can be justified and those that cannot, in medicine and beyond. This Article further contends that the experience of medical conscience legislation represents a cautionary tale, rather than the success story that marriage conscience proponents claim. Conscience protection in the medical model could actually increase conflict and entrench opposition. Ultimately, these critiques undermine the theoretical and practical foundations of “marriage conscience protection.” They suggest that antidiscrimination law, where we have traditionally balanced religion and equality, constitutes a more useful lens through which to view religious accommodation

Crisis of Conscience in Post-Roe America

This essay proceeds in four parts. Summarizing my previous writing, Part II explains that since Roe, the law has systematically favored refusing individuals and institutions. This asymmetry was unjustified, because “[c]onscience equally may compel a doctor or nurse to deliver a controversial treatment to a patient in need.” After Dobbs v. Jackson Women’s Health Organization, the asymmetry may deepen. In restrictive states, Part III contends, the crisis of conscience for willing providers will increase, even as rights to refusal expand. Part IV identifies several possible complications for the legal framework governing conscience in medicine. It suggests that as refusal bills broaden, they may (unintentionally) shield providers committed to delivering at least some care. And as abortion bans grow more severe, hospitals once categorized as refusing may find themselves willing to perform life- and health-saving abortions. They may experience irreconcilable tension between abortion bans and their (religious and moral) healthcare mission. Part V turns to issues of conscience in those states seeking to safeguard abortion. It argues that the normalization of refusal and the reach of religious healthcare systems will erect major barriers to the expansion of reproductive healthcare in these states. State policies expanding abortion access will have to be carefully designed around shifting constitutional doctrine related to the religion and speech rights of healthcare institutions