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