Volume 88, Number 3 (March, 2015)
Religious Accommodations and - and among - Civil Rights: Separation, Toleration, and Accommodation
Article by Richard W. Garnett
88 S. Cal. L. Rev. 493 Americans recently marked and celebrated the fiftieth anniversary of the passage of the Civil Rights Act of 1964. During the past half-century, a wide variety of antidiscrimination laws, civil rights protections, and equal access rules have been enacted by the full range of authorities and jurisdictions, from small towns to the United Nations. These measures, in addition to a broad array of policies and programs having to do with education, voting rights, social welfare...
Religious Institutionalism, Implied Consent, and the Value of Voluntarism
Article by Michael A. Helfand
88 S. Cal. L. Rev. 539 Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. Indeed, these persisting tensions have pressed two fundamental questions to the forefront of legal d...
Religious Exemptions, Stating Culture: Foreword to Religious Accommodations in the Age of Civil Rights
Article by Martha Minow
88 S. Cal. L. Rev. 453 “There is a war against religion!” “Exemptions on religious groups undermine civil rights!” “Pluralism and tolerance are in jeopardy!” “Freedom for some ends up trumping freedom and equality for others!” Whether any of these individual statements is true, the rising claims of catastrophe by opposing groups across the United States prompted an intense and engaging conference, “Religious Accommodation in the Age of Civil Rights,” held at Harvard Law School on April 3–5, 2...
Die and Let Live? The Asymmetry of Accommodation
Article by Steven D. Smith
88 S. Cal. L. Rev. 703 The increasingly apt term “culture wars” refers to a polarizing tendency in which Americans are coming to coalesce around opposing political agendas that themselves murkily reflect divergent conceptions and evaluations of individualism, community, equality, authority, tradition, sexuality, Christianity, and the meaning and mission (if any) of America. At the moment, the controversy over same-sex marriage is the most fiercely contested political and cultural battle, but...
It's About Money: The Fundamental Contradiction of Hobby Lobby
Article by Nomi Maya Stolzenberg
88 S. Cal. L. Rev. 727 In late November, shortly after the Supreme Court granted certiorari in Burwell v. Hobby Lobby, Linda Greenhouse published a perceptive op-ed arguing that the contraceptive mandate cases “aren’t about the day-in, day-out stuff of jurisprudence under the First Amendment’s Free Exercise Clause,” and they aren’t about the rights of corporations either. Instead, she said, “They are about sex.” In response to which I want to say yes, they’re about sex. And they’re about r...
Why "Live-And-Let-Live" is not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights
Article by Mary Anne Case
88 S. Cal. L. Rev. 463 For the better part of a decade, a number of well-intentioned scholars of religious liberty have insisted that, as Douglas Laycock put it, “conflicts . . . between religious conservatives and the gay rights movement have live-and-let-live solutions in the tradition of American liberty.” More recently, some have tried to concretize this general claim in more-or-less specific proposals for accommodation of religious objectors in the context of state laws recognizing sam...
Accommodating Empire: Comparing French and American Paths to the Legalization of Gay Marriage
Article by Malick W. Ghachem
88 S. Cal. L. Rev. 511 Dating back to the revolutionary era, France and the United States have vied, sometimes directly, in a longstanding contest for leadership status in the area of human rights. Where gay marriage is concerned, however, it would be more accurate to describe both nations as followers rather than leaders. In late April 2013, about twelve years after the Netherlands became the world’s first nation to legalize same-sex marriage, and on the heels of large and passionate protest...
Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law
Article by Andrew Koppelman
88 S. Cal. L. Rev. 619 In 2006, an Albuquerque photographer declined to photograph a same-sex wedding, citing religious objections. The couple sued her for discrimination and won. Cases like this one present a conflict between gay rights and religious liberty. Religious conservatives feel that it would be sinful for them to personally facilitate same-sex marriages, and they have sought to amend the laws to accommodate their objections. These efforts have met fierce resistance. In Arizona, the...
A Confident Pluralism
Article by John D. Inazu
88 S. Cal. L. Rev. 587 In February 2014, the Kansas House of Representatives proposed a bill that would have permitted business owners with religious objections to deny some customers services and accommodations. Sixty years after Brown v. Board of Education, Kansas legislators would have allowed citizens of Topeka to refuse restrooms, restaurants, and water fountains to other citizens. Across the state of California today, conservative religious student groups are no longer welcome on pub...
Article by Melissa Murray
88 S. Cal. L. Rev. 661 When Vanessa Willock emailed Elane Photography seeking information about photography services for her upcoming commitment ceremony, she was likely expecting a run-of-the-mill response—pricing information, samples of prior work, a discussion of the photographer’s availability for the date in question. She was not expecting Elaine Huguenin, a co-owner of Elane Photography, to refuse the commission outright on the ground that she “[did] not photograph same-sex weddings.” L...
The Modern Mac: Allocating Deal Risk In the Post-IBP v. Tyson World
Note by Bryan Monson
88 S. Cal. L. Rev. 769 The definitive agreement in mergers and acquisitions (“M&A”) transactions is one of the most heavily negotiated agreements in the field of commercial contracts. Besides establishing basic terms, such as defining the target and setting the form and amount of consideration, both buyer and seller attempt to allocate risk in order to achieve an acceptable level of deal certainty. Between an agreement’s signing and its closing, weeks, if not months, can pass as the purchase...
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