Friday, September 1, 2017
Meghan Boone, The Autonomy Hierarchy, 22 Tex. J. Civ. Liberties & Civ. Rgts 1 (2016)
The Supreme Court decided two cases in Spring 2015 – Young v. United Parcel Service, Inc. and EEOC v. Abercrombie & Fitch Stores, Inc. – under Title VII. The plaintiffs in both cases believed that they had been discriminated against by their employers because they were members of a protected class – pregnant women in the former and religious believers in the latter. Both plaintiffs were seeking minor modifications to workplace policies as an accommodation. And in both opinions, handed down within a few months of each other, the Court used the language of favoritism to discuss whether the plaintiffs should prevail and what analysis should be employed. The manner in which the Court used the language of favoritism, however, could not have been more different. In the case of pregnancy, the Court soundly rejected that pregnant employees were entitled to any favored treatment, bending over backwards to avoid a ruling that pregnant employees were part of a “most favored” class. In the case of religion, the Court took the exact opposite approach, declaring that religious plaintiffs enjoyed “favored treatment.” This is despite the fact that Title VII provides no explicit textual support for such a distinction. In the absence of such a statutory explanation, what is really behind this difference in approach? This paper explores one potential answer to this question – that these decisions reflect the Court’s underlying belief in the paramount importance of the right to spiritual autonomy over and above the importance of a right to physical autonomy. Further, it explores how allowing such a hierarchy between a right to spiritual autonomy on the one hand and a right to physical autonomy on the other, to animate judicial decisions is both inherently gendered and has the effect of disproportionately harming women. It concludes by analyzing whether such a hierarchy of rights is reflective of lived experience and discussing possible alternative frameworks for analyzing such claims.
Tuesday, March 7, 2017
Gillian Thomas, NYT, "Four Days That Changed the World": Unintended Consequences of a Woman's Rights Conference, reviewing:
Marjorie Spruill, Divided We Stand: The Battle Over Women's Rights and Family Values
To answer these riddles requires understanding how we got here, and Marjorie J. Spruill’s “Divided We Stand” offers a detailed if sometimes dense primer. Spruill, a professor of women’s, Southern and modern American history at the University of South Carolina, convincingly traces today’s schisms to events surrounding the National Women’s Conference, a four-day gathering in Houston in November 1977. At the time, Ms. magazine called the event — a federally funded initiative to identify a national women’s rights agenda — “Four Days That Changed the World.” So why is it that today, as Gloria Steinem recently observed, the conference “may take the prize as the most important event nobody knows about”?
In Spruill’s telling, the Houston conference was world-changing, but not entirely for the reasons the organizers had hoped. The event drew an estimated 20,000 activists, celebrities and other luminaries for a raucous political-convention-cum-consciousness-raising session. The delegates enacted 26 policy resolutions calling not just for ratification of the Equal Rights Amendment (then just three states shy of the 38 needed) but a wide range of measures including accessible child care, elimination of discriminatory insurance and credit practices, reform of divorce and rape laws, federal funding for abortion and — most controversially — civil rights for lesbians. Those “planks” later were bundled as a National Plan of Action and presented to President Jimmy Carter, amid much fanfare, in a report entitled “The Spirit of Houston.”
The conference had an unintended, equally revolutionary consequence, though: the unleashing of a women-led “family values” coalition that cast feminism not just as erroneous policy but as moral transgression. Led by Phyllis Schlafly, a small but savvy coalition of foot soldiers mobilized against the conference’s aims. These activists found common cause in their deep religiosity and opposition to feminism’s perceived diminishment of “real” womanhood. And although their leadership denied it, the group also had ties to white supremacists. “Divided We Stand” argues that the potency of these advocates and their successors reshaped not just the nation’s gender politics, but the politics of the Democratic and Republican Parties as well.
Monday, March 21, 2016
Doug Laycock, Wash Post, How the Little Sisters of the Poor Puts Religious Liberty at Risk
Zubik v. Burwell is the Supreme Court’s name for the set of cases more often identified with the Little Sisters of the Poor, a religious order that is also a party to the case. I filed an amicus brief in Zubik on behalf of the Baptist Joint Committee for Religious Liberty. I had never before filed a brief in support of the government in a case about the free exercise of religion. ****
The second, and even more dangerous argument: These organizations say that because the government exempted the insurers of churches and their integrated auxiliaries, it is required to exempt the insurers of all other conscientious objectors as well. Otherwise, it discriminates between two groups of religious organizations.
This argument is a mortal threat to an essential and widespread source of protection for religious liberty. There are thousands of specific religious exemptions in U.S. law. If legislators and administrative agencies cannot enact a narrow religious exemption without it being expanded to become all-inclusive, many of them will not enact any religious exemptions at all. And they will start repealing the exemptions they have already enacted.
Friday, March 4, 2016
Kif Augustine-Adams (BYU), Religious Exemptions to Title IX
Abstract:Forty years into the Title IX game, the score is 253 to 0, religious exemptions recognized versus those denied. Almost no one knows the overall score of the game, who has made points, or who is playing. Prior to the Human Rights Campaign’s release of a report in December 2015, relatively few beyond the participants themselves even knew the game was played. Documented religious exemptions to Title IX largely take place in the dark, in private administrative processes rarely made public, under obscure agency standards and policies. The parameters of religious exemptions to Title IX have never been litigated in court or subjected to judicial review. Virtually no scholarship exists on the subject. Religious exemptions to Title IX pose a particularly urgent question given the flood of new exemptions claims focusing on transgender and homosexuality. This analysis is a first, foundational step in evaluating religious exemptions to Title IX.
On its face, a score of 253 and counting, suggests complete and overwhelming victory for one side, the educational institutions claiming religious exemption to Title IX. In reality, however, the lopsided score hides another story, one much more complex and nuanced than the score reflects. Over time, the government agency charged with Title IX enforcement subtly arrogated to itself power and authority to regulate religious exemption to Title IX. As much as victory, the score reveals a subtle erosion of autonomy as religious educational institutions acquiesce to the administrative state by requesting exemption under regulatory procedures rather than claiming inherent exemption under the Title IX statute itself and the Constitution. I conclude that the administrative regulatory procedures for religious exemption to Title IX have largely failed to accomplish the non-discrimination goals of Title IX, to respect religious liberties, or to facilitate a sustainable engagement between these potentially competing values.
Wednesday, January 27, 2016
Elizabeth Rose Schlitz (St. Thomas), Motherhood: Benefit or Burden to Business, International Study Seminar on “Women and Work”, Pontifical Council for the Laity, Rome, Italy (2015)
Abstract:This essay is a contribution to an International Study Seminar on the topic of “Women and Work”, convened by the Pontifical Council for the Laity in Rome, Italy, on December 4-5, 2015, to be published with the complete proceedings of the conference.
In recent decades, the Catholic Church has come to share the widespread social consensus about the urgent need for the insights of the feminine genius in all sectors of society – in the home as well as the halls of government, schools and universities, and businesses. However, an argument for women in the workplace does not, in itself, furnish a compelling business case for mothers in the workplace. Is there something unique about the gifts, talents, and perspectives of women who are mothers, or something unique about what women who are mothers add to the dynamic of men and women working together?
This essay argues that persuasive arguments for accommodating mothers in workplace are crucial for two reasons: First, to ensure that employers who want to achieve gender balance do not follow the lead of companies such as Facebook and Apple, offering incentives for women to remain childless during their most productive years as ‘ideal workers’ rather than accommodating parenting. Second, to ensure the continued presence in workplaces and national and international governing bodies of people with personal stakes in advocating for policies to enable parents to balance their work and their caregiving responsibilities, and in reminding their nations and the world of the reality that the overwhelming proportion of the world’s poverty population is composed of women and children – across the globe, in countries of all stages of development.
The essay offers four arguments for the value of mother in the workplace: (1) businesses want women workers, and most women workers want to be mothers; (2) businesses benefit long term from the caregiving work of mothers, and should thus shoulder some of its cost; (3) accommodating motherhood is not, in fact, as much of a burden on businesses as is commonly thought; and (4) mothers offer some unique and valuable skills to the workplace.
Friday, October 2, 2015
Since the American press largely ignored or downplayed the Pope's January 2015 Vatican visit with a transgender man from Spain, many Americans have nothing to counterbalance off the Pope's Kim Davis visit to understand that the pontiff's visit is not meant to signal he has taken Davis' side, or joins in condemning gay culture. Rather it is the Pope's demonstration of compassion for all people.
While those eager to criticize and even hate the Pope for his visit with Davis, those with open minds can consider the Vatican visit with Diego Neria Lejarraga and his fiancee as a refutation of the hatred that the Davis camp is spreading. The public following the Pope is due more comprehensive exposure to Pope Francis' inclusion of the different voices and lifestyles he embraces in his spiritual vision of the Church in the future, and the vist with Neira represents the Pope's boldest departure from Catholic doctrine to date.
Thursday, May 7, 2015
From the LA Times, in a story that implies the acute connection between gender autonomy and physical movement:
When Hala Radwan returned to Saudi Arabia after obtaining a business degree in France, she was eager to put her new skills to use.
She found a job in the marketing department of a big international company. There was just one problem: How would she get to and from work in the only country that does not allow women to drive?
Wednesday, April 29, 2015
Brian Tashman of “Right Wing Watch” reports that on a recent episode of the Family Research Council’s “Washington Watch,” conservative Rabbi Daniel Lapin claimed that the problem with effeminate liberals is that an excess of estrogen in their systems causes them to fall in love with “the masculine strength and brutality of Islam.”
Host Tony Perkins asked him why liberals “favors Islam and actually promotes it, even to their own demise,” and Rabbi Lapin responded with what he characterized as a “zinger” of an answer — there’s a “sexual dimension” in which, much like feminized hostages suffering from Stockholm Syndrome, liberals are attracted to the masculinity of the Islamic extremists.
Thursday, April 23, 2015
Why are biased acts against women — even religiously motivated ones — considered so much less toxic than biased acts of any other kind? Why do women often demur and accept humiliation rather than make a fuss? Why does respect even for admittedly extreme religious beliefs trump respect for half the human race?
My encounter came to mind again as I pondered recent stories of ultra-Orthodox Jewish men refusing to take airline seats next to women. Several cases were reported in the New York Times this month. Others have appeared in the Israeli press as far back as 2012.On some flights women reportedly moved when asked. Some men switched places with women to eliminate the adjacency problem. Some flight attendants assisted the Orthodox men in relocating. Yet when others did not, some flights were delayed as men refused to be seated. The incidents have spawned lively discussions among Jews and non-Jews alike.
Yet I wonder: Why are we even discussing this?
Would such blatant behavior be treated merely as a social choice, a courtesy issue or an awkward airline customer-service problem if the targets were anyone other than women?
Let’s test it. What if we recast my encounter, giving me a different race and gender. How do I react now if someone says, “I don’t touch black men.” Do I quietly move on? How would this young man have reacted had the tables been turned? What if I had done something I could never imagine myself doing? Would he have treated it as a social issue if I had refused his hand, saying: “I don’t shake hands with Jews?”
Friday, April 10, 2015
Francesca Hogi, 40, had settled into her aisle seat for the flight from New York to London when the man assigned to the adjoining window seat arrived and refused to sit down. He said his religion prevented him from sitting beside a woman who was not his wife. Irritated but eager to get underway, she eventually agreed to move.
A growing number of airline passengers, particularly on trips between the United States and Israel, are now sharing stories of conflicts between ultra-Orthodox Jewish men trying to follow their faith and women just hoping to sit down. Several flights from New York to Israel over the last year have been delayed or disrupted over the issue, and with social media spreading outrage and debate, the disputes have spawned a protest initiative, anonline petition and a spoof safety video from a Jewish magazine suggesting a full-body safety vest (“Yes, it’s kosher!”) to protect ultra-Orthodox men from women seated next to them on airplanes.
Wednesday, April 1, 2015
Indiana recently passed a law that ostensibly promotes religious freedom but arguably also promotes the right of businesses to discriminate against gays. Arkansas has followed suit with a legislative bill that does something similar.
For discussion by the NYT, see here.
And for a conservative defense of the Indiana law--which is interestingly couched in the technical formalities of law, rather than the cultural ideology of heterosexuality (a tacit homage to liberalism?)--check out the arguments in the National Review.
And, for a typically droll commentary by Andy Borowitz at the New Yorker, check out this spoof (it's quite absent any snark and it's a telling commentary about the ubiquity these days of straight people having friends, colleagues, and, indeed, family members, who are gay).
Wednesday, March 25, 2015
NAPLES, Italy, March 23, 2015 (LifeSiteNews.com) -- For at least the third time in his pontificate Pope Francis has used very strong language to condemn the gender theory, one of the intellectual underpinnings of the ‘LGBT’ agenda. Speaking Sunday with young people on his voyage to Naples, Italy, Pope Francis spoke of the “ideological colonization” of families seen throughout Europe and the West.
“Gender theory is an error of the human mind that leads to so much confusion," he said. “So the family is under attack.” As to how to deal with the “secularization” or the “ideological colonization,” the pope said he does not have the answer. He pointed however to the Synod on the Family, which he called inspired by the Lord.
The comments echo those made in an in-flight interview Pope Francis gave while returning from Manila in the Philippines on January 19, 2015. Francis lamented the Western practice of imposing a homosexual agenda on other nations through foreign aid, which he called a form of “ideological colonization” and compared it to the Nazi propaganda machine.
Asked by a reporter to explain the phrase “ideological colonization,” the pope gave an example from 1995 when, he says, a minister of education in a poor area was told she could have a loan for building schools so long as the schools used a book that taught “gender theory.”
"This is ideological colonization,” he said. “It colonizes the people with an idea that wants to change a mentality or a structure." This ideological colonization, he added, “is not new, the dictators of the last century did the same.” "They came with their own doctrine. Think of the BalilLa (The Fascist Youth under Mussolini), think of the Hitler youth."
Monday, March 16, 2015
Marie Ashe (Suffolk) has uploaded a new paper about the ministerial exception and its relationship to the area of gender and law. The abstract:
The US Supreme Court’s Hosanna-Tabor opinion, defining a Constitutionally-rooted “ministerial exemption” of churches from the obligations of anti-discrimination laws, utilized an “absolutist” approach that has been contrasted with the “balancing” approach to the same issue taken by the European Court of Human Rights. Focusing on Hosanna-Tabor, this essay provides analysis of the implications of the case by identifying its location in – and its contribution to – the program of “religious privilege” that has been advanced the Supreme Court during the past 25 years. The essay documents relevant Constitutional case law and statutes; outlines the evolution of the “ministerial exemption;” and, points to losses of individual equality that are being accomplished concurrently with great expansions of “religious liberty” and with abandonment of meaningful “separationism” in the US. Accepting the critique of “absolutism,” the essay suggests, further, that Hosanna-Tabor and other recent work of the Court lack – but that resources extractable from US law of the “religious pluralism” period can provide – conceptual resources useful for protection of individuals’ equality and for minimizing “divisiveness based on religion.”
Wednesday, March 11, 2015
An Irish Catholic bishop said on Monday that homosexuality — like Down’s syndrome or spina bifida — was not part of God’s plan, and that same-sex couples with children were “not necessarily parents.” In an interview with the NewsTalk Breakfast radio program, Elphin Bishop Kevin Doran argued that voters should reject an upcoming referendum to legalize same-sex marriage because LGBT couples could not procreate.
Hear the interview here (scroll down to bottom).
Friday, March 6, 2015
Wednesday, February 18, 2015
In a rare interactive interview held at the end of January, high-ranking leaders of the Church of Jesus Christ of Latter-day Saints fielded questions on LGBT issues. Church members flooded the moderator with queries about how to navigate the tension between supporting family members and friends and following one’s conscience on LGBT issues when it is at variance with current church teachings. One question dealt with transgender identity, and the response by Elder Dallin H. Oaks of the Quorum of the Twelve Apostles, one of the highest-ranking church leaders, was the most significant—and underreported—statement from that session. A mother said, “I have a transgender son who came out to us about a year ago. … I hate having to fear what retaliation [from church leaders] I might have for supporting him … I think we as members need that assurance that we can indeed have our own opinions, support our children, and still follow our beliefs.”
A Republican state senator in South Carolina called women “a lesser cut of meat” and suggested that they belonged barefoot and pregnant, the libertarian-leaning blog FITS News reports. Chauvinist in any context, Corbin’s remarks occurred during a legislative dinner this week to discuss domestic violence legislation. Sources present at the meeting told FITS that Corbin directed his comments at fellow GOP state senator Katrina Shealy, the sole woman in the 46-member chamber.
“I see it only took me two years to get you wearing shoes,” Corbin told Shealy, who won election in 2012. Corbin, the site explains, is said to have previously cracked that women should be “at home baking cookies” or “barefoot and pregnant,” not serving in the state legislature.
“He makes comments like that all the time to everybody – including Senator Shealy,” said one legislative aide who spoke to FITS.
Wednesday, January 28, 2015
After years of behind-the-scenes meetings between LGBT advocates and top Mormon leaders, church officials Tuesday announced for the first time general support for legislation to protect LGBT people in areas such as housing and employment – as long as accommodations are made to protect the freedom of religious people who oppose such measures.
“We must all learn to live with others who do not share the same beliefs or values,” read a statement released at a midday Salt Lake City news conference.
Church officials emphasized that there has been no change of the doctrine. The Church of Jesus Christ of Latter-Day Saints teaches that it goes against the law of God to have sex outside of marriage between a man and a woman.
LGBT advocates had mixed reactions to the announcement, which mirrors a national discussion about how to balance civil rights of gays and lesbians with the religious freedom of conservatives of different faiths who oppose gay equality, among other liberalizing moves.
Sunday, January 25, 2015
From bikini-clad beachgoer to veiled jihadist fugitive, the partner of Paris gunman Amedy Coulibaly underwent a startling metamorphosis that illuminates the dangerous potential behind militant groups' efforts to increase their recruiting of female terrorists.
Although French police initially questioned Hayat Boumeddiene, 26, five years ago, they acknowledge that she was subsequently able to make hundreds of phone calls and arrange meetings for Coulibaly through the wives of fellow assailants. She is then believed to have fled to Turkey just before the rash of killings in Paris this month, and is believed to have crossed into Syria.
The battle lines are clear: Some high-level church officials, most notably the conference of German bishops, want the church to relax its rules so that divorced Catholics can more fully return to church life, particularly by receiving communion, even if they have remarried. Traditionalists arepushing back fiercely, arguing that the indissolubility of marriage is ordained by God and therefore nonnegotiable.
In October, bishops from around the world argued about divorce, among other topics, at a synod on family issues; this October, a larger group of bishops will meet for a second Vatican synod at which they will decide whether to recommend changes. The decision of whether to act, then, will be up to Francis.