Prejudice, Constitutional Moral Progress, and Being “On the Right Side of History”: Reflections on Loving v. Virginia at Fifty

Looking back at the record in Loving, this Article shows the role played by narratives of constitutional moral progress, in which the Lovings and their amici indicted Virginia’s antimiscegenation law as an “odious” relic of slavery and a present-day reflection of racial prejudice. In response, Virginia sought to distance such laws from prejudice and white supremacy by appealing to “the most recent” social science that identified problems posed by “intermarriage,” particularly for children. Such work also rejected the idea that intermarriage was a path toward progress and freedom from prejudice. This Article concludes by briefly examining the appeal to Loving in arguments about not being on “the wrong side of history” in the successful challenge to Virginia’s bans on permitting or recognizing same-sex marriage

\u27Male Chauvinism\u27 is Under Attack from All Sides at Present : \u3ci\u3eRoberts v. United States Jaycees\u3c/i\u3e, Sex Discrimination, and the First Amendment

This Article considers the relationship between gender equality and freedom of association. Part I begins with the Supreme Court’s recognition of the freedom of association as first articulated in NAACP v. Alabama. It shows how, in the context of race discrimination, some key civil rights victories have enlisted claims of the freedom of association, while some other victories have prevailed against such claims. Those precedents set the foundation for the Court’s decision in Jaycees, which concerned gender discrimination. Part II focuses on the role of Jaycees in drawing an analogy between the harms of gender discrimination and sexual-orientation discrimination and on the limits of freedom of association claims in both contexts. It highlights how parties and amici in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission relied on Jaycees to connect race and sex discrimination to sexual-orientation discrimination. In Masterpiece Cakeshop, the petitioner—a baker who refused to create a wedding cake for a same-sex couple—argued that the application of Colorado’s public accommodations law to him violated his right to free exercise of religion and impermissibly compelled his creative expression. I focus in particular on the arguments made by the National Women’s Law Center, an amicus in support of the respondents. Part III returns to Jaycees and examines the arguments made by the parties and their amici regarding the evident conflict between promoting sex equality—women’s full participation in society—and protecting freedom of association. What was at stake for women in being excluded from full membership in organizations, like the Jaycees and all-male private clubs, that provided members “an entree to the ‘Old Boys Network’”? What was at stake for the Jaycees and similar organizations in a climate in which (as one amicus put it) “‘Male chauvinism’ is under attack from all sides”? Part IV briefly returns to the present day and asks whether the old boys network that presented such a vexing barrier to women’s economic and career mobility is simply a relic of the past or has continuing potency. Part IV concludes by comparing some present-day controversies over freedom of association and gender equality to those fought out in Jaycees

Justice and Elegance for Hedgehogs - In Life, Law, and Literature

At a time when value pluralism and even value polarization seem to be undeniable facts of contemporary life, Ronald Dworkin unrepentantly defends the unity of value. His point of departure is the Greek poet Archilochus’s saying, “The fox knows many things, but the hedgehog knows one big thing,” made famous in liberal philosopher Isaiah Berlin’s essay, The Hedgehog and the Fox. In his forthcoming book, Justice for Hedgehogs, Dworkin argues for the integration of ethics, personal morality, and political morality and contends that law is a branch of political morality that in turn is a branch of morality, broadly understood. My article compares Dworkin’s book with the best-selling novel, The Elegance of the Hedgehog, by Muriel Barbery (described as a philosophical fable). I argue that certain features of these two works Dworkin’s book make it fruitful to read them in tandem and that the comparison may be serendipitous, but is not arbitrary. Dworkin’s frequent turn to literature and to literary interpretation as germane to his project might warrant description of Justice for Hedgehogs as a work in “law and literature.” By this, I refer to two aspects of the law and literature methodology: (1) a focus on interpretation as a common task in law and literature; and (2) a focus on narrative. In contrast to Dworkin’s previous concentration on developing an account of interpretation in law and political morality, Justice for Hedgehogs has greater ambitions: it theorizes about common features of the interpretive process across many different fields, and also puts interpretation at the heart of how people answer fundamental questions about what it means to live well and how we should treat each other. The broad scope and ambition of Dworkin’s book push it beyond the category of a conventional work of jurisprudence and invite assessments that step outside the four corners of conventional legal scholarship. This comparison of Dworkin’s book with Barbery’s novel is in that spirit

Palmore v. Sidoti: The Troubling Effects of Private Biases

A cloud of disembodied and disapproving eyes hovers behind three figures forming a family tableau at the center of Xavier Cortada’s painting about Palmore v. Sidoti (1984). Linda Sidoti Palmore, a white mother, holds onto her young daughter, Melanie, who in turn holds the hand of Charles Palmore, a black man, Linda’s new husband. As Cortada writes of the painting, part of a series about landmark Supreme Court cases that originated in his home state of Florida, those eyes “in a sea of Caucasian skin” —and the “profound racism” they reflected—tried to tip the balance in a custody battle. Melanie’s white father, Anthony Sidoti, disapproved of her mother’s interracial relationship and persuaded a trial court to transfer custody to him because of the “social stigmatization” Melanie would surely suffer, despite “strides” in race relations. The Supreme Court reversed, famously declaring that “private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Cortada celebrates this seeming legal triumph by showing the interracial family striding forward despite the disapproving eyes. Despite Linda’s legal victory, however, she never regained custody of her child. And, as this chapter depicts, her marriage to Charles was troubled and brief. The judgmental eyes that Cortada depicts achieved the initial disruption of Linda’s family tableau he depicts. The blind eye the Supreme Court turned to her requests for the return of her daughter while she pursued her constitutional claim continued that disruption, and state court judges then aided her ex-husband’s legal maneuverings to keep Melanie. Drawing on news stories and legal filings in the case, this chapter chronicles the disturbing “effect” of prejudice and explains that the more typical family tableau was one of absence – with Melanie present only as a photograph at which Linda gazes

Marriage Pluralism in the United States: On Civil and Religious Jurisdiction and the Demands of Equal Citizenship

“Legal pluralism” is hot, particularly in family law. As family law and practice in the United States have become global due to the globalization of the family, some argue it is time for U.S. family law to embrace more legal pluralism so that civil government would cede jurisdictional authority over marriage and divorce law to religious communities. They point to forms of pluralism already present in U.S. family law, such as covenant marriage (available in three states) and New York’s get statutes. They suggest the U.S. should learn from how many other nations allocate jurisdiction over marriage and divorce law (for example, systems of personal law, in which religious tribunals have such jurisdiction). In this chapter, I argue that an exercise in comparative law does reveal many different ways of allocating jurisdiction over family law, but does not answer the normative question of whether these are good models for U.S. family law. Challenging the call for a “multi-tiered” marriage, I analyze what form of marriage pluralism in the U.S. is sought and what might be motivating this demand. I examine differing views about whether there should be congruence between religious and civil marriage, illustrating with the controversy over same-sex marriage. I raise a normative concern over tensions between religious doctrines and key commitments, values, and functions of civil family law, illustrating with how state courts in the U.S. now navigate those tensions when asked to enforce terms of religious marriage contracts and other religious law. I am also skeptical as to whether a more pluralistic legal system can adequately protect the equal citizenship of women. Nearly every foreign example that proponents of jurisdictional pluralism in family law offer raises troubling question about how to reconcile sex equality with religious freedom. Feminist scholars highlight the importance of claims of national and constitutional citizenship as a strategy for redressing sex inequality, even as they affirm the value of membership in religious and cultural groups. Finally, I ask what lessons we might learn about legal pluralism from the recent controversy over religious family law arbitration (or “sharia arbitration”) in Ontario

Religious and Political Virtues and Values in Congruence or Conflict?: On Smith, Bob Jones University, and Christian Legal Society

A basic tension in the U.S. constitutional and political order exists between two important ideas about the relationship between civil society and the state: (1) families, religious institutions, voluntary associations, and other groups are foundational sources, or “seedbeds,” of virtues and values that undergird constitutional democracy, and (2) these same institutions guard against governmental orthodoxy and overweening governmental power by generating their own distinctive virtues and values and by being independent locations of power and authority. The first idea envisions a comfortable congruence between civil society and government: the values and virtues - and habits and skills - cultivated in each domain are in agreement. Civil society institutions enjoy recognition as prominent sites for sustaining democracy. Or, at least, they are “mediating associations,” cultivating moral dispositions supportive of the political order. What happens, as the second idea contemplates, when values and virtues generated by other nongovernmental institutions conflict with political values and virtues? What does pluralism mean or require in a healthy constitutional democracy with a commitment, on the one hand, to the free exercise of religion and freedom of association, on the one hand, and, on the other, to a principle that free and equal citizenship requires being free from discrimination on certain grounds? Government may afford religious institutions exemptions from certain laws in order to protect religious freedom, but is not constitutionally required to, according to the landmark case of Employment Division, Department of Human Resources of Oregon v. Smith (1990). There, the majority warned that unfettered freedom of religious practice would allow each person “to become a law unto himself,” exempt from all manner of “civic obligations,” while Justice Blackmun’s dissent stressed the basic congruence between the values and interests underlying Oregon’s anti-drug law at issue and those of the Native American Church. This article looks back at Smith as an instructive case about the political and constitutional dilemma over congruence, pluralism, and how to resolve the clash between distinct constitutional values. I offer a similar analysis of Bob Jones University v. United States (1983) in which the Court upheld the IRS’s revocation of the university’s tax exempt status because of its racially discriminatory policies. I then evaluate Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez (2010), as a significant case about congruence: the clash between a public university’s attempts to carry out its educative mission through enforcing norms of antidiscrimination and a student organization’s freedom to choose its members and promote a particular message about sexuality. The treatment, in the various opinions, of the relationship among race, sex, and sexual orientation discrimination and the requirements of toleration is illuminating for a new generation of cases about clashes between free exercise and antidiscrimination law

Prejudice, Constitutional Moral Progress, and Being On the Right Side of History : Reflections on Loving v. Virginia at Fifty

What does it mean to be on the “right” or “wrong” side of history? When Virginia’s Attorney General explained his decision not to defend Virginia’s “Defense of Marriage Law” prohibiting same-sex marriage, he asserted that it was time for Virginia to be on the “right” rather than “wrong” side of history and the law. He criticized his predecessors, who defended the discriminatory laws at issue in Brown v. Board of Education, Loving v. Virginia, and United States v. Virginia. Loving played a crucial role in the majority opinion in Obergefell v. Hodges, even as the dissenters disputed its relevance; it continues to feature in post-Obergefell controversies over religious liberty and LGBT rights. Looking back at the record in Loving, this article argues that Loving illustrates a theme of generational moral progress in constitutional interpretation: laws once justified by appeals to nature, history, tradition, divine law, and the well-being of children and society are repudiated as rooted in prejudice. Virginia sought to distance its antimiscegenation law from prejudice and white supremacy by appealing to social science that identified problems posed by “intermarriage” -- particularly for children -- and rejected the idea that intermarriage was a path toward progress and freedom from prejudice. Countering with narratives of constitutional moral progress, the Lovings and their amici argued that Virginia’s law was an odious relic of slavery and a present-day reflection of racial prejudice, unsupported by modern science. The article concludes with a look at Obergefell, and the competing arguments southern states made about Loving and the lessons of history

Corporate Conscience and the Contraceptive Mandate: A Dworkinian Reading

When a closely-divided U.S. Supreme Court decided Burwell v. Hobby Lobby (2014), upholding a challenge by three for-profit corporations to the contraceptive coverage provisions (“contraceptive mandate”) of the Patient Protection and Affordable Care Act of 2010 (“ACA”), sadly missing in the flurry of commentary was the late Ronald Dworkin’s assessment. This essay asks, “What would Dworkin do?,” if evaluating that case as well as Wheaton College v. Burwell, in which, over a strong dissent by Justices Sotomayor, Ginsburg, and Kagan, the Court granted Wheaton College emergency relief from complying with ACA’s accommodation procedure for religious nonprofit organizations who object to the contraception mandate as substantially burdening religious Free Exercise. This essay addresses these questions about ACA and corporate conscience in light of Dworkin’s call, in Religion Without God, to shift from a special right of religious freedom, protected by the Religious Freedom Restoration Act, to a general right of ethical independence. Dworkin only briefly discussed the place of exemptions from general laws in that reorientation, and so this essay considers the form a Dworkinian analysis might take. It examines the different arguments made in Hobby Lobby by the parties, friends of the court, and the justices about whether a for-profit corporation has a right to the free exercise of religion and whether ACA burdens it. Given Dworkin’s sharp criticisms of the idea of corporate personhood in Citizens United v. Federal Election Commission, in the context of political speech, the essay asks whether he would have been similarly critical of corporate personhood for a family-owned, closely held business, given the concern for female employees’ reproductive liberty expressed in Justice Ginsburg’s Hobby Lobby dissent. The essay then asks what insights Dworkin’s work sheds on pending challenges to ACA’s accommodation provision as not accommodating enough

Common and Uncommon Families in the American Constitutional Order

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, for example, recognizing the right of privacy. This essay argues that States of Union offers a wry and engaging answer to these rhetorical claims by illuminating that the relationship between the family and the constitutional order is one of change and contestation. Brandon illustrates this more complex story through examining the coexistence of several household forms at the time of the framing – the Jeffersonian agrarian family, the Hamiltonian commercial, capitalist family, the slaveholding family, and (later) frontier families – and by chronicling the relatively late constitutional entrenchment of the monogamous family, in reaction to the perceived threat to civilization posed by the Indian family, but, ultimately, by the Mormon polygamous family. Brandon also offers valuable glimpses of “uncommon families,” unconventional households that deviated from the nuclear family (e.g., ascetic, pietest, communist, millennial, as well as practitioners of complex marriage), and of the different ways that legal and political institutions dealt with each form, sometimes showing a surprising degree of tolerance. The essay concludes by addressing the tensions that Brandon teases out in the Court’s “modern” jurisprudence about the family and the relevance of those tensions to current debates, including over same-sex marriage and nonmarital families