Gender and the Law Blog

The Rise of Religious Liberties and the Religious Right to Abortion

Caroline Mala Corbin, Religious Liberty for All? A Religious Right to Abortion,  Wisconsin L. Review (forthcoming)

One of the most notable recent trends in Supreme Court jurisprudence is the expansion of religious liberty rights. The right to practice one’s faith is a critical element of a democracy, but the Supreme Court has privileged that right over other equally critical ones, most notably the right to equal treatment. Thus, for example, it has held that for-profit companies have a religious right to exclude contraception from their health insurance plans and that nonprofit charities have a religious right to refuse to place foster children with same-sex couples. In these and similar cases, the religious beliefs aligned with conservative Christianity.
 
But what if the religious liberty claim were not brought by a conservative Christian but by a progressive Christian, or not a Christian at all, and the religious belief collided with traditional Christian ideology? More precisely, what might be the result of a religious liberty challenge to an abortion ban? This question is not farfetched, as Jewish and other faith groups in multiple states are challenging restrictive abortion laws based upon religious freedom. Plaintiffs argue that their state’s abortion ban impedes their ability to live out the commandments of their faith. Would the Supreme Court retrench its religious liberty doctrine in the face of these lawsuits? Or would expansive religious liberty exemptions be available for progressive views as well as conservative ones? Or neither? This Essay examines that question, and well as the implications of a denial of the progressive religious liberty claim.
 
Part I outlines the ballooning of religious liberty rights, and how they have usually helped conservative white Christians at the expense of less powerful groups. Part II takes the current expansive doctrine and applies it to a claim for a religious right to abortion, arguing it should succeed given recent decisions. Part III suggests that despite the current doctrine, the Court will likely reject the claim, and discusses what this failure indicates about the future of the Supreme Court.

Church of England Considers Gender Neutral Pronouns of They/Them for God

Wash Post, Is God They/Them? Church of England Considers Gender Neutral Pronouns

The Church of England is exploring whether to use gender-neutral language instead of referring to God solely with masculine pronouns, such as “He” or “Our Father” — which would be a major change after millennia of prayer and teachings.

The church is launching a project on “gendered language” this spring, following a years-long effort to study the ways in which God is referred to and addressed in liturgy and worship.

“Christians have recognised since ancient times that God is neither male nor female,” the Church of England said in an emailed statement. “Yet the variety of ways of addressing and describing God found in scripture has not always been reflected in our worship.”

 

The church — and theologians — say this is nothing new, and is part of a broader push to adapt the language it uses to contemporary times. Any decision to change the language used to refer to, or address, God would also need the approval of the church’s legislative body — and there is no consensus so far on the best language to use.

Evaluating Religious Freedom Claims in Abortion

Richard Schragger & Micah Schwartzman, Religious Freedom and Abortion, Iowa L. Rev. (forthcoming)  

The demise of Roe v. Wade has raised a host of religious liberty questions that were submerged prior to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. One question is whether state abortion bans are subject to challenge under the Establishment Clause, and state analogs, on the grounds that the government is forbidden from imposing religiously motivated laws. Another question is whether abortion restrictions violate the free exercise rights of people who are religiously motivated to seek, provide, or facilitate abortion services.

We evaluate these claims by way of making a more sustained argument about the current politics of church-state relations under the Roberts Court. First, we argue that abortion bans should be vulnerable to Establishment and Free Exercise challenges under doctrinal standards adopted in recent cases, which have closely scrutinized laws burdening religiously motivated conduct. Second, despite the justices’ expansive approach to religious freedom, we nevertheless predict that the Supreme Court will deny exemptions in the abortion context. It will do so not only because of the justices’ political inclinations, but also because the doctrine is sufficiently malleable to allow rejecting certain kinds of religious liberty claims while accepting others. Third, we argue that this selective application the Court’s religious liberty jurisprudence vindicates a long-standing critique of judicially mandated free exercise exemptions, namely, that such exemptions too easily permit judges to pick and choose among religious claims.

The Court’s recent innovations in free exercise doctrine will invariably favor certain religious believers over others, raising a broader question about whether it is possible for liberal and progressive believers to vindicate their claims to religious freedom. In the abortion context, those who demand exemptions to advance their belief that life begins at conception will receive them, while those who demand exemptions to protect their belief that life begins later, or that health and life of pregnant individuals are of paramount importance, will not. In this way, free exercise exemption doctrine serves as an instrument of religious preferentialism.

Masterpiece Cakeshop Baker Loses Suit on Cake for Gender Transition

CPR, Colorado Baker Loses Appeal over Birthday Cake for Gender Transition

The Colorado baker who won a partial U.S. Supreme Court victory after refusing to make a gay couple’s wedding cake because of his Christian faith lost an appeal Thursday in his latest legal fight, involving his rejection of a request for a birthday cake celebrating a gender transition.

The Colorado Court of Appeals ruled that that the cake Autumn Scardina requested from Jack Phillips and Masterpiece Cakeshop, which was to be pink with blue frosting, is not a form of speech.

It also found that the state law that makes it illegal to refuse to provide services to people based on protected characteristics like race, religion or sexual orientation does not violate business owners' right to practice or express their religion.

Relying on the findings of a Denver judge in a 2021 trial in the dispute, the appeals court said Phillips' shop initially agreed to make the cake but then refused after Scardina explained that she was going to use it to celebrate her transition from male to female.  ***

“We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to an observer would not be attributed to the baker,” said the court, which also rejected procedural arguments from Phillips.

Phillips, who is represented by Alliance Defending Freedom, maintains that the cakes he creates are a form of speech and plans to appeal.

Conference and CFP, Equal Justice Under Law?

American University, Annual Symposium, Equal Justice Under Law

CFP Deadline Jan. 3, 2023

2023 Annual Symposium: Equal Justice Under Law?

On February 3, 2023, the American University Law Review's 2023 Annual Symposium—Equal Justice Under Law?—will explore what is left of the Constitution after the 2021-2022 U.S. Supreme Court term. The Law Review is thrilled to announce that Dean Erwin Chemerinsky will be this year's Keynote Speaker. Dean Chemerinsky is a distinguished scholar and has authored fourteen books, including leading casebooks and treatises about constitutional law, criminal procedure, and federal jurisdiction. Additionally, the Law Review will host multiple Supreme Court practitioners as panelists this year to weigh in on the Court's recent term and the questions it raises moving forward.

Call for Papers: American University Law Review’s 2023 Annual Symposium

Download PDF Here!

The American University Law Review is placing a call for submissions of original legal articles and scholarly commentaries for its forthcoming Annual Symposium issue, this year dedicated to a review and response to the 2021 through 2022 Supreme Court term and the upcoming term. Specifically, the Law Review seeks submissions analyzing the rapidly evolving response to the Supreme Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Kennedy v. Bremerton School District, Carson v. Makin, Shurtleff v. City of Boston, and pending cases before the Supreme Court in the next term on affirmative action, the Indian Child Welfare Act, and free speech. Approximately four to six submissions will be selected, with a publication date slated for the spring of 2023.

Rabbis Object to State Expert Testifying about Christian Theory of Abortion Law

Ohio Rabbis React to State Expert Offering Christian Understanding of Abortion Law

In a battle that has long ebbed between science and religion, Republicans in Ohio have begun using explicitly Christian rationale to try and limit abortion care access for everyone in the state.

During an Oct. 7 hearing in a Hamilton County Court, Judge Christian Jenkins ruled to indefinitely block the state of Ohio’s six-week abortion ban.

In the case Preterm Cleveland v. Dave Yost, Jenkins heard testimony from doctors on both sides (Ohio attorney general Dave Yost is a Republican). Preterm Cleveland, made up of a large network of Ohio abortion providers, put forth a University of Maryland doctor with three decades of working with high-risk pregnancies, while the state brought up a retired Cedarville University biomedical ethics professor who called abortion a violation of those ethics.

Still, he testified for the state that his research into “personhood” supports his belief that life begins at conception. That research, a scholarly article on “human embryo metaphysics,” says the idea that humans’ “intrinsic value” begins at conception “is crucial to the most prominent Christian understanding of human dignity.”

That use of the phrase “Christian understanding” is enough to make Rabbi Lindsey Danziger feel that the state of Ohio may be teetering on imposing a single religious viewpoint on its citizens.

“Bringing in a Christian theologian I think makes it pretty clear it’s a Christian viewpoint of when life starts,” Danziger says. “It’s not the jewish viewpoint.”***

“Jewish tradition teaches that life begins and ends with breath. Life starts with the first breath and ends with your last breath,” Danziger says. “The word in Hebrew for breath, nephesh, is the same as the word for soul. That being said, a fetus in Jewish legal tradition isn’t not a life, but it’s not a life – it’s kind of something in between a life and not a life, it’s a potential life.”

“There’s a lot of examples in Jewish law that a fetus is treated differently than a human life, to the extent that Jewish tradition teaches that if a pregnant individual’s life is in danger it’s not just permitted but it’s commanded to terminate the pregnancy,” Danziger says. “I think it’s really problematic as someone who is not a Christian if the state is establishing a religion, that is against the constitution."***

Danziger doesn’t know if legal action from the Jewish community is on its way in Ohio yet, but she points to cases in Florida, Indiana and Kentucky in which Jewish people are suing the state for infringing on religious freedom by attempting to ban abortions.

“They say as Jewish women, it infringes on their religious freedom to deal with their pregnancies in a way that is consistent with their faith beliefs,” Danziger says.

Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman's Reflections as a Law Professor

Angelique Eaglewoman, Trailblazing and Living a Purposeful Life in the Law: A Dakota Woman’s Reflections as a Law Professor, 51 Southwestern U. L. Rev. (2022)

This Essay is a reflection from my perspective as a Dakota woman law professor on my fifth law school faculty. In the illuminating work of Meera Deo, light is shone on the experience of women of color legal academics. "Unequal Profession: Race and Gender in Legal Academia" is a book that should be required reading at every law school. As women of color are faculty members in every law school in the United States, the research, analysis, and recommendations tailored to the experience of women of color law faculty should be a priority topic in those same law schools. As a Native American woman law professor, my experience and journey in legal academia resonate with many of the topics in this important work.

In Part I of this Essay, the necessity of trailblazing is discussed due to the lack of Native American women in the legal academy. Issues around visibility, ethnic fraud, and tribal sovereignty will be discussed. Part II will explore the challenges identified in "Unequal Profession" through a raceXgender framework and provide a personal perspective on dealing with such challenges. The themes of invisibility and lack of respect experienced as a Native American woman law professor will be discussed. The final section in Part III will provide insight into the motivation to stay the course and continue to make space in legal academia. In living a purposeful life, there is a choice to be a law professor as a Native woman with the goal of holding the door open for more Native American faculty, law students, and legal administrators to walk through.

Jewish Synagogue Sues Florida, Saying Abortion Restrictions Violate Religious Freedoms

Synagogue Sues Florida, Saying Abortion Restrictions Violate Religious Freedoms 

But a lawsuit filed last week by a South Florida synagogue challenges new legislation in the state banning most abortions after 15 weeks, saying it violates the State Constitution’s right to privacy and freedom of religion. In Jewish law, the suit argues, “abortion is required if necessary to protect the health, mental or physical well-being of the woman.”

 

The lawsuit, filed by Congregation L’Dor Va-Dor, a progressive synagogue in Palm Beach County not affiliated with a broader denomination, may face an uphill climb in court. But it is a reminder that abortion poses religious issues beyond those of the Christian right. And it suggests potential legal issues that could surface at a time when Roe seems likely to be overturned, and the Supreme Court has been aggressively open to a wider role for religion in public and political life.

 

Florida’s state law limiting abortions, signed by Gov. Ron DeSantis in April, goes into effect July 1. In banning abortions after 15 weeks, it does not make exceptions for cases of incest, rape or human trafficking. It does, however, allow for abortions if the mother’s life is endangered or if two doctors determine that the fetus has a fatal abnormality. The law was challenged earlier this month by the American Civil Liberties Union of Florida on behalf of a group of abortion providers and abortion rights organizations.***

See also South Florida Synagogue Sues Over Florida's New 15-Week Abortion Ban

 

Deeply-rooted Jewish teachings indicate that abortion is permissible — and even required — if a mother’s life is in danger, said Jewish leaders from across the ideological spectrum. In Jewish thought, it is also widely accepted that as long as a fetus is in the womb, it has “potential,” but not full, personhood, said Michal Raucher, an assistant professor of Jewish Studies at Rutgers University.

Reimagining Gender Through British Equality Law Using Paths from Religion and Disability Law

Flora Renz & Davina Cooper, Reimagining Gender through Equality Law: What Legal Thoughtways do Religion and Disability Offer?, Feminist Legal Studies, 2022

British equality law protections for sex and gender reassignment have grown fraught as activists tussle over legal and social categories of gender, gender transitioning, and sex. This article considers the future of gender-related equality protections in relation to ‘decertification’ – an imagined reform that would detach sex and gender from legal personhood. One criticism of decertification is that de-formalising gender membership would undermine equality law protections. This article explores how gender-based equality law could operate in conditions of decertification, drawing on legal thoughtways developed for two other protected characteristics in equality law: religion and belief, and disability, to explore the legal responses and imaginaries that these two grounds make available. Religious equality law focuses on beliefs, communities, and practices, deemed to be stable, multivarious, and subject to deep personal commitment. Disability equality law focuses on embodied disadvantage, approached as social, relational, and fluctuating. While these two equality frameworks have considerable limitations, they offer legal thoughtways for gender oriented to both its hierarchies and its expression, including as disavowal.

Banning the Full-Face Veil: Freedom of Religion and Non-Discrimination in the Human Rights Committee and the ECHR

Sarah H. Cleveland has published her article Banning the Full-Face Veil: Freedom of Religion and Non-Discrimination in the Human Rights Committee and the European Court of Human Rights in volume 34 of the Harvard Human Rights Journal. The excerpt summarizes that:  

The international human rights to freedom of religion and protection from discrimination on grounds of religion are two such closely related rights. In Yaker v. France and its companion case Hebbadj v. France, before the UN Human Rights Committee, and in S.A.S. v. France, before the European Court of Human Rights, the two bodies reached inconsistent conclusions regarding the compatibility of France’s ban on wearing the fullface veil (the niqab or burqa) in any public space with France’s obligations under the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights, respectively. The French law purported to be religiously neutral, in that it prohibited all apparel concealing the face. However, Article 2 of the French law exempted a large number of face coverings other than the full-face veil, and, in practice, the vast majority of the checks conducted under the Act involved Muslim women wearing the full veil. Sonia Yaker, who was twice subjected to criminal fines for wearing the niqab, and the claimant in S.A.S., who wished to wear the full veil without risk of sanction, separately challenged the Act as, inter alia, violating their right to manifest their religion and constituting indirect discrimination on grounds of religion.

 

Both the Court and the Committee recognized that by imposing criminal penalties on the Muslim women claimants who chose to wear the fullface veil in public, the Act interfered with their ability to manifest their religion under Article 9 of the European Convention and Article 18 of the ICCPR, respectively. The two bodies diverged, however, in their application of the limitations provisions of those articles, as well as the nondiscrimination provisions of the two treaties. This Essay explores the treatment of the claims of religious freedom and religious discrimination by the European Court and the Committee. This case study offers an opportunity to consider the relationship between these two fundamental human rights, as well as the respective doctrinal and institutional roles of the regional Court and the more universal Committee as human rights interpreters.

Judge Rules Christian Businesses Exempt from LGBTQ Employment Discrimination Claims

Religious Businesses Shielded From LGBT Bias Claims

For-profit businesses can be shielded from LGBT discrimination liability based on sincerely held religious beliefs, a federal judge in Texas ruled Sunday, addressing several legal questions left open after the U.S. Supreme Court granted anti-bias protections for sexual orientation and gender identity.

 

Braidwood Management Inc., which operates Christian health-care businesses controlled by Dr. Stephen Hotze, can avoid Title VII of the 1964 Civil Rights Act’s LGBT anti-bias prohibitions under the Religious Freedom Restoration Act and the First Amendment, U.S. District Judge Reed O’Connor in Fort Worth held.

 

Separately, Bear Creek Bible Church and other religious nonprofits can escape liability for firing, refusing to hire, or taking other adverse job actions against LGBT workers under Title VII’s religious exemptions, O’Connor said.

 

The ruling comes in a lawsuit that Braidwood and Bear Creek filed against the U.S. Equal Employment Opportunity Commission, seeking carve outs to Title VII following the Supreme Court’s landmark 2020 decision in Bostock v. Clayton County, GA, which expanded civil rights protections for LGBT workers. The justices left unaddressed the scope of religious defenses to workplace discrimination liability.

The case is here: Bear Creek Bible Church & Braidwood Mgt v. EEOC (N.D. Tex. Oct. 31, 2021)

From Digital Platforms to Facial Recognition Technologies: Structural Challenges to Women’s Activism

From Digital Platforms to Facial Recognition Technologies: Structural Challenges to Women’s Activism

By: Monika Zalnieriute

Submission to the Thematic Report on Girls’ and Young Women’s Activism for the 50th Session of the United Nations Human Rights Council

Girls and women face many challenges in engaging in activism across the globe. Both online and in public spaces in our cities, which are increasingly surveilled and monitored by government and law enforcement agencies, women face challenges. In this submission, I would like to draw attention to several issues in particular. First, many countries around the world do have discriminatory face-covering laws, which ban Muslim face coverings in public spaces and thus prevent young women and girl activists from Muslim cultural backgrounds from exercising their rights to freedom of assembly, expression and opinion, among other rights. Second, a lot of public places, including cities and airports, are increasingly equipped with facial recognition technology, which undermines women's activism in city streets and squares. Third, in the digital environment and on media platforms, women from marginalized groups, such as LGBTI communities, face new threats and challenges – their speech and expression are often suppressed and also weaponized against them. Furthermore, the rise of large-scale data collection and algorithm-driven analysis targeting sensitive information poses many threats for women activists, especially from LGBTI communities, who are especially vulnerable to privacy intrusion due to their often hostile social, political, and even legal environments. I invite the UN Working Group on Discrimination against Women and Girls to:

1) Call on the UN bodies to enhance their understanding of theory intersectionality. I have recently proposed a way to enhance judicial interpretation of reconceptualizing by reference to a modified concept of “harmful cultural practices”, (paper is freely available on SSRN).
2) Call for a ban on the use of facial recognition technology by governments in public city spaces.
3) Call for the development of binding international human rights law for private actors to remedy the violations of freedom of expression of women activists, especially from LGBTI communities in the digital environment.

The Ministerial Exception to Workplace Harassment

Rachel Casper, When Harassment at Work is Harassment at Church: Hostile Work Environments and the Ministerial Exception, University of Pennsylvania Journal of Law and Social Change

Sexual harassment and harassment on the basis of race, national origin, disability, and age are unlawful workplace practices; what does that mean when one’s workplace is a church? This article explores the ministerial exception’s application to hostile work environment claims. Can ministerial employees bring harassment claims against their religious employers? Put differently, can religious organizations harass their ministerial employees with impunity and without fear of legal recourse? Respecting both First Amendment interests and individual rights, this article appraises and takes seriously the constitutional purpose and necessity of the ministerial exception. Recognizing that importance, this article nevertheless rejects a categorical ban on ministerial employees’ hostile work environment claims. Instead, it proposes a case-by-case analysis of ministerial employees’ hostile work environment claims, granting all employees possible protection from harassment, regardless of who employs them. Religious freedom need not close the courthouse doors on hundreds of thousands of employees. Religious freedom and speculative First Amendment problems need not, and should not, undermine employees’ rights to dignified workplaces and protection from workplace harassment. 

New Book: Jesus and John Wayne, How Patriarchy and Toxic Masculinity are Perpetuated by the Church

The author lets the research speak for itself as she explores the modern cultural manifestations of patriarchy, militant masculinity, and the church's role in sexism.

Wash Post, "Jesus and John Wayne": How a Book About Evangelicals Became a Best Seller

As journalists and academics tried to explain how evangelicals could bring themselves to vote for Trump, Du Mez argued that evangelical support was not a shocking aberration from their views but a culmination of evangelicals’ long-standing embrace of militant masculinity, presenting the man as protector and warrior.

“In 2016, many observers were stunned at evangelicals’ apparent betrayal of their own values,” Du Mez wrote. “In reality, evangelicals did not cast their vote despite their beliefs, but because of them.”***

Du Mez, who teaches at Calvin University in Grand Rapids, Mich., wrote that mainstream evangelical leaders such as John Piper, James Dobson and John Eldredge, preached a “mutually reinforcing vision of Christian masculinity — of patriarchy and submission, sex and power.”

“The militant Christian masculinity they practiced and preached did indelibly shape both family and nation,” Du Mez wrote.

Gender as a Central Feature of Illiberal Rhetoric and Action

Susanna Mancini & Nausica Palazzo, The Body of the Nation: Illiberalism and Gender, Routledge Handbook of Illiberalism (S. Holmes, A.Sajo, R. Uitz eds., forthcoming, 2021)

Gender has become a central feature of illiberal rhetoric and action. While socio-legal scholarship has established a clear relationship between anti-genderism and populist parties and/or the global right, the link between anti-genderism and illiberalism has not yet been clearly established. The aim of this chapter is to fill this gap.

The chapter first explicates the link between anti-genderism and global right/right-wing populism (two phenomena strictly related to contemporary illiberalism). It then establishes a more specific link between anti-genderism and illiberalism, by focusing on illiberal actors’ war on “gender ideology”, and their efforts to reshape human rights epistemology. The analysis corroborates these links by looking at three domains: immigration, religious attire, and sexual and reproductive rights.

Sixth Circuit Allows Professor's First Amendment Suit to Proceed, Challenging Discipline for Refusal to use Transgender Student's Preferred Pronouns

Professor Who Refused to Use Transgender Student's Preferred Pronouns Can Pursue Suit, 6th Circuit Says

The Cincinnati-based 6th U.S. Circuit Court of Appeals has reinstated a First Amendment lawsuit by a public college professor in Ohio who violated school policy by refusing to use a transgender student’s preferred pronouns.

 

The 6th Circuit ruled for Shawnee State University philosophy professor Nicholas Meriwether in a March 26 opinion by Judge Amul Thapar, an appeals court appointee of President Donald Trump. Thapar was viewed as a potential U.S. Supreme Court nominee during Trump’s presidency.

 

Meriwether, a devout Christian, believed God created humans as male or female, and said using preferred pronouns to refer to a student in his class violated his religious beliefs.

 

The student had protested after Meriwether referred to her as “sir.” University policy required professors to use students’ preferred pronouns, and Meriwether received a written warning.

 

Meriwether proposed a compromise where he would refer to the student only by her last name. At first it was accepted, but was later rejected. The university said Meriwether should either stop using all sex-based pronounds in his classroom, or he should refer to the transgender student as a female.

 

Meriwether sued for free speech and free exercise violations under the First Amendment, and due process and equal protection violations of the 14th Amendment. A federal judge tossed the claims, but the 6th Circuit reversed as to the First Amendment claims.

 

Courthouse News Service, the Volokh Conspiracy and Reuters reported on the opinion. How Appealing links to additional coverage.

"Where is God When we Need Her?" Women's Right to Freedom of Religion or Belief as Key to Promoting Gender Equality

Cochav Elkayam-Levy, "Where Is God When We Need Her? Women’s Right to Freedom of Religion or Belief as Key to Promoting Gender Equality"  95, Tulane L. Rev. (forthcoming)

Belief is a fundamental right of every woman. It articulates women's freedom to follow their aims and beliefs and protects their personal autonomy to pursue their chosen faith (be it theistic, non-theistic or atheistic). It also guarantees that women would be able to freely express their diverse opinions, moral convictions and experiences without social or other constraints. Yet this article reveals that women’s belief liberties are a blind spot in human rights law. The right to freedom of religion or belief has thus far been widely viewed by the international community as an obstacle to women's advancement; Among many aspects of this problem, this article considers the implications of the omission of the right to freedom of religion or belief from the Women’s Convention. It shows that states receive little guidance on how to secure this right in ways that also respect the right to gender equality. It also identifies a conflict syndrome by which women are predominantly viewed through the lens of harmful practices. Lastly, it calls attention to the fact that, presently, no state is being systematically supervised for implementing this fundamental right of women. Examining possibilities for change, the article demonstrates that the right of women to gender equality and to freedom of religion or belief are inseparably linked and that international mechanisms protecting women’s belief liberties could tremendously contribute to advancing women’s equal status.

SCOTUS Holds that Employer's Religious Liberty Trumps Women's Right to Healthcare and Birth Control

The U.S. Supreme Court decided Little Sisters of the Poor v. Pennsylvania (July 8, 2020), in a split opinion, with the majority written by Justice Thomas.  Justices Kagan and Breyer concurred in the judgment.

Justice Ginsburg strongly dissented,. recognizing the threat to not just women's healthcare, but women's equality.

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree. *** Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets. The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result. Nor does the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., condone harm to third parties occasioned by entire disregard of their needs. I therefore dissent from the Court’s judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services. 

More Than the Vote: The 19th Amendment as Proxy for Systemic Gender Equality

I have just published my article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stanford J. Civil Rights & Civil Liberties 349 (2020).

Elizabeth Cady Stanton, pioneering leader of the women’s rights movement in the nineteenth century, famously declared the right of women to vote in 1848 at a convention in Seneca Falls, New York. She alone initially appreciated the importance of the vote both for women’s political power and participation in the governance of the country, as well as its symbolic meaning for women’s full citizenship. Her abolitionist and religious colleagues, however, were suspicious and a bit outraged by the suffrage demand, as these moralistic reformers were opposed to politics, which they viewed as fundamentally corrupt due to bribery, patronage, and abuse of power. Stanton’s friend and co-organizer Lucretia Mott was worried the demand would make the meeting “look ridiculous” and Stanton’s husband, Henry, dismissed the suffrage claim as a “farce.”

 

Nevertheless, they persisted. For seventy-two more years, women activists would fight for the right to vote by organizing annual conventions, creating associations, petitioning legislatures and constitutional conventions, writing editorials, delivering speeches, and campaigning door-to-door for what would become the Nineteenth Amendment to the U.S. Constitution.

 

This nearly century-long movement for suffrage, however, was never just about the vote. It originated as part of a comprehensive plan for women’s equality as proclaimed at Seneca Falls in the women’s Declaration of Sentiments. Stanton, the intellectual driver of the first women’s rights movement, conceptualized the vote as only one of the needed rights of women to access the political process. The elective franchise was a key piece of reform to provide women access to the right to make the laws that governed them, but it was never the sole goal. Rather, Stanton’s first-wave movement envisioned a full-scale reform of law and society to bring about women’s freedom and equal opportunity. Change was needed, she argued, in four venues: the state, family, industry, and church. She described women’s oppression as “a fourfold bondage” with “many cords tightly twisted together, strong for one purpose” of woman’s subordination.

 

Despite these broad equality efforts targeting multiple systems, the vote emerged as the primary demand for women’s rights. The Civil War “effectively killed the initial collectivity behind the broadly based humanitarian goals of the Seneca Falls Convention.” After the war, Reconstruction and the Civil Rights Amendments focused the national conversation on federal constitutional change, and particularly on the power of the vote prioritized in the Fifteenth Amendment. The Fourteenth Amendment also highlighted the issue of the vote for women by explicitly inserting gender into the Constitution for the first time, enforcing the right to vote guaranteed to “male inhabitants” and “male citizens.” Women’s rights advocates were drawn into this constitutional debate, forced to
narrow their focus and react to the national dialogue on suffrage.***

 

Pulled into this national constitutional movement, women’s rights activists utilized the demand for the vote as a proxy for a greater comprehensive agenda of both equality and emancipation from oppression. As Stanton later recalled, the vote was not the central idea of Seneca Falls, but rather “the social wrongs of my sex occupied altogether the larger place” in the early movement.  Her advocacy for the vote thus came to represent full citizenship rights, defined as full equality in civil rights and emancipation from oppressive social and religious norms.

 

This essay first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women. This long view of women’s rights shows it was never only about the
vote; rather, the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. 

The Women of the Supreme Court are Sick of These Nonsense Objections to Birth Control

The Women of the Supreme Court are Sick of These Nonsense Objections to Birth Control

Conservatives have been trying to unwind the birth control benefit in the Affordable Care Act (ACA) for nearly a decade now, and the women justices on the U.S Supreme Court are over it.

 

That much was apparent during oral arguments Wednesday in Trump v. Pennsylvania and its companion case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.

 

It’s the third time the Court has heard a challenge to the birth control benefit, which guarantees access to FDA-approved contraception methods at no additional cost or co-pay in most employer-sponsored health plans. But this case is the most absurd and dangerous challenge yet

 

Justice Ruth Bader Ginsburg drove that point home from the hospital, where she was recovering from a gallbladder procedure while defending the rights of hundreds of thousands of employees the Trump administration is trying to “toss to the winds entirely,” to use her words. Justice Sonia Sotomayor reminded Solicitor General Noel Francisco that should the Court side with the Trump administration, the benefits of around a hundred thousand employees (by even the most conservative estimate) would be in jeopardy. And Justice Elena Kagan appeared to be searching for a compromise she could get the chief justice to sign onto.

 

At its core is the same central question: Can your boss deny you health insurance coverage for contraception based on a religious objection? But these cases take that question and, like everything in the Trump years, extend it to absurd lengths by asking if your boss can deny you those same benefits based on a moral objection as well.

 

The moral exemption to the birth control benefit is a toxic addition inserted by the Trump administration three years ago after conservative efforts to upend the benefit in court fell flat. Trump announced the exemption in a Rose Garden ceremony flanked by the Little Sisters of the Poor, the nuns who would continue on as the face of the administration’s efforts to undermine the benefit. It was the kind of reality-TV spectacle that has come to define this administration—full of pomp, empty on substance, but with the potential to unleash an unfathomable amount of chaos in its wake.

 

And that’s precisely why the administration brought the nuns along. Someone has to sell this pile of garbage to the Roberts Court, and the nuns have proven more than willing to play along.

 

There is no world in which the nuns would have to provide contraception coverage for their employees. None. Not a single one. They are covered by exemptions, court orders, and a provision of employee benefits law that guarantees the federal government mostly stay out of their business. So when Paul Clement, the attorney representing the Little Sisters, suggested that the nuns would stop providing care to the elderly and poor should they have to simply fill out a form noting their objection to the benefit, I was glad to be covering the arguments from home. Had I been at the Court, I definitely would have been ejected for the spontaneous, “OH COME THE FUCK ON, PAUL” that response requires.

 

Turns out, I’m as fed up with these cases as the women justices of the Court.