Law Office History and the Unrelenting Attack on Public Accommodations Law

In recent years, the cause of commercial liberty has found new life in litigation challenging public accommodations laws that prohibit discrimination by businesses on the basis of sexual orientation. Considerable scholarly attention has been paid to the use of the First Amendment as a liability shield in these cases, which have primarily been litigated on the terrain of free speech and religious liberty. But in amicus briefs filed in both cases that have reached the Supreme Court—303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—scholars who are skeptical of commercial regulation have also offered the more sweeping argument that the Court should “tie the legitimate goals of public-accommodation law directly to local scarcity.” On this view, only businesses with monopoly power can be subject to nondiscrimination rules, while non-monopoly businesses enjoy a constitutional right to refuse service as part of the “entrepreneurial liberty” guaranteed by the Fourteenth Amendment. This abstract has been taken from the author\u27s introduction

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

Law Office History and the Unrelenting Attack on Public Accommodations Law

In recent years, the cause of commercial liberty has found new life in litigation challenging public accommodations laws that prohibit discrimination by businesses on the basis of sexual orientation. Considerable scholarly attention has been paid to the use of the First Amendment as a liability shield in these cases, which have primarily been litigated on the terrain of free speech and religious liberty. But in amicus briefs filed in both cases that have reached the Supreme Court—303 Creative LLC v. Elenis and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission—scholars who are skeptical of commercial regulation have also offered the more sweeping argument that the Court should “tie the legitimate goals of public-accommodation law directly to local scarcity.” On this view, only businesses with monopoly power can be subject to nondiscrimination rules, while non-monopoly businesses enjoy a constitutional right to refuse service as part of the “entrepreneurial liberty” guaranteed by the Fourteenth Amendment. This abstract has been taken from the author\u27s introduction

Lukumi at Twenty: A Legacy of Uncertainty for Religious Liberty and Animal Welafere

Twenty years after the United States Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, uncertainty reigns in the lower courts and among commentators over the issue of constitutionally compelled religious exemptions. Despite the Court’s general disavowal of such exemptions in Employment Division v. Smith, Lukumi appeared to breathe life into a potentially significant exception to Smith. Under that exception—which this Article calls the “selective-exemption rule”—the Free Exercise Clause may still require religious exemptions from a law when the government selectively makes available other exemptions from that law. This Article addresses the key unresolved questions about the scope of the selective-exemption rule and challenges the broad interpretation of the rule that leading religious-liberty advocates have been pressing in courts around the country. That broad interpretation, which played a prominent role in the recent animal-sacrifice case of Merced v. Kasson and has been further developed in the ongoing Stormans, Inc. v. Selecky litigation over emergency contraception, would go a long way to achieving a de facto reversal of Smith. But while there are credible arguments for reconsidering Smith and its “equal protection” interpretation of the Free Exercise Clause, those arguments should not be advanced through the backdoor of the selective-exemption rule. That rule was adopted as part of the Smith paradigm, and it only makes sense to interpret it within that paradigm. Accordingly, this Article makes the case for a more appropriately tailored reading of the selective-exemption rule—a reading grounded in the rule’s origins as a tool to prevent intentional discrimination, and a reading that would enable the government to enforce animal welfare laws that have only an incidental effect of limiting religious animal sacrifice

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