State Inaction, Equal Protection, and Religious Resistance to LGBT Rights

Now that the Supreme Court has held that states must recognize same-sex marriages, a new issue looms on the horizon: Must states also protect against sexual-orientation discrimination in the private marketplace? This Article contends that the answer under the Equal Protection Clause is yes for the forty-five-plus states that protect against marketplace discrimination on the basis of race, religion, national origin, and sex. In the course of reaching that conclusion, this Article offers much-needed clarification of the Court\u27s unsettled state inaction doctrine. Under that doctrine, a state\u27s failure to act may be immunized from challenge on the ground that the Constitution typically provides individuals with only negative rights to be free from adverse state action and not positive rights to demand favorable action by the state. But the state inaction doctrine, which was developed in the due process context, has no proper application in the equal protection context. Thus, it should not immunize from constitutional challenge either (1) proposed religious exemptions that are designed to allow business owners to refuse marriage-related services to same-sex couples or (2) state failures to protect against sexual-orientation discrimination in the first place. Instead, such exemptions and omissions from state antidiscrimination laws must be defended on the merits. Part I of this Article concludes that the proposed exemptions, which were already vulnerable under United States v. Windsor, are even more difficult to defend in light of Obergefell v. Hodges. Part II then makes the more far reaching argument against omissions. In doing so, it explains how requiring states with otherwise broad civil rights laws to protect against sexual-orientation discrimination flows naturally from key observations about equal dignity in Justice Kennedy\u27s recent equal protection opinions

Grand Theory or Discrete Proposal? Religious Accommodations and Health Related Harms

More than a quarter-century has passed since the Supreme Court decided in Employment Division v. Smith that religious accommodations are primarily a matter of legislative grace, not constitutional right. In that time, barrels of ink have been spilled over the merits of the Smith decision. But comparatively little attention has been given to the issue of how legislatures and other political actors should exercise their discretion to grant or deny specific religious accommodations. In their article To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, Professor Hillel Levin, Dr. Allan Jacobs, and Dr. Kavita Arora aim to fill that critical gap. They propose a specific methodology for political actors to use in considering requests for religious exemptions—with the goal of bringing more consistency to the accommodation project—and their proposal has much to recommend it. This Response argues, however, that the Authors’ argument for their proposal suffers by trying to do too much. Instead of offering their proposal solely as a prudential tool for policymakers, they also frame it as a constitutional tool that judges can use to enforce the Religion Clauses of the First Amendment. As detailed in this Response, the Authors’ effort to have their proposal serve this second function runs into serious problems that can only distract from their primary mission. Accordingly, this Response suggests that the Authors refocus exclusively on that primary mission in future efforts to advance their proposal and offers a few suggestions for how the Authors might seek to operationalize their test in the political realm

Human Immunodeficiency Virus Type 1 Counseling and Testing Program in the Prenatal Setting

Objective: The objectives of this study were to ascertain the acceptance rate of human immunodeficiency virus type 1 (HIV-1) testing in a high-prevalence area and to describe the sociodemographic and clinical characteristics of seropositive women diagnosed in the prenatal setting

Impact of HAART and CNS-penetrating antiretroviral regimens on HIV encephalopathy among perinatally infected children and adolescents

Prior to antiretroviral treatment, HIV-infected children frequently developed encephalopathy, resulting in debilitating morbidity and mortality. This is the first large study to evaluate the impact of HAART and central nervous system (CNS)-penetrating antiretroviral regimens on the incidence of HIV encephalopathy and survival after diagnosis of HIV encephalopathy among perinatally infected children