Tagged: equality


UCLA Law Review Vol. 61, Issue 4

Volume 61, Issue 4 (May 2014)

Expressive Enforcement Avlana Eisenberg 858
Insider Trading as Private Corruption Sung Hui Kim 928
Marriage Equality and Postracialism Russell K. Robinson 1010



Fast and Furious, or Slow and Steady? The Flow of Guns From the United States to Mexico Jessica A. Eby 1082
Parole Denial Habeas Corpus Petitions: Why the California Supreme Court Needs to Provide More Clarity on the Scope of Judicial Review Charlie Sarosy 1134





Bottlenecks: The book we all should be reading

Let me start with a confession: I am an unlikely contributor to this symposium.

Bottlenecks: A New Theory of Equal Opportunity, by Joseph Fishkin

Bottlenecks is fundamentally a work of legal philosophy, offering as the subtitle promises, “a new theory of equal opportunity.” The book lays out a new way of thinking about both the purposes and the structure of social opportunity, exploring in depth the implications of this theory for thinking about topics such as class, work, education, gender, anti-discrimination law, and equality as a constitutional value.

I don’t write about any of those things. Maybe you don’t either. So what are we both doing here?

My goal in this post is to convince you that both you and I very much belong in this conversation, because with Bottlenecks, Joey has penned that rare book that can inform projects in fields as diverse as IP (my own) and immigration, bankruptcy and business organizations, family law and criminal law. If there one book of 2014 that I can plausibly claim should be read by everyone in law and public policy, this would be that book.

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The Contraception Mandate Part I

The Affordable Care Act is changing the health care landscape. Among the changes is that employers that provide health insurance must cover preventive services, including contraception. Although the requirement does not apply to religious organizations, it does apply to religiously affiliated ones. This “contraception mandate” has generated a huge outcry from some religious leaders, most notably the United States Conference of Catholic Bishops. They insist that forcing Catholic hospitals, schools, or charities to include contraception in their employee insurance plans violates religious liberty.

It doesn’t. It certainly doesn’t violate the Free Exercise Clause. After Employment Division v. Smith, neutral laws of general applicability are constitutional, regardless of the burden they may impose on religious practices. Indeed, the law upheld in Smith banned a religious sacrament. But it was neutral, in that it did not intentionally target religion, and it was generally applicable, in that it was neither riddled with exceptions nor grossly underinclusive. The regulation requiring employers who provide health insurance to include contraception in that coverage is likewise a neutral law of general applicability.

While a recent Supreme Court decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC) carved out an exception to this “neutral-generally-applicable-laws-do-not-violate-the-Free-Exercise-Clause” rule, it does not apply here. This exception — which holds that religious institutions are immune from neutral, generally applicable anti-discrimination laws when they are sued by their ministers — was designed to protect churches’ ability to pick their leaders without interference from the state. However, the provision by religiously-affiliated organizations of health insurance to their employees, many of whom do not belong to the same faith as their religious employer, clearly does not involve ministers or internal church governance. In short, there is no valid Free Exercise Claim.

What about the Religious Freedom Restoration Act? Stay tuned.


The Promise of Equality

On this past weekend, I thought about the words: “We hold these truths to be self-evident, that all men are created equal.” In 1776 those words were more powerful than we can even imagine. Equality was not the norm in politics and government. To declare such equality boldly and forthrightly was radical. Truly revolutionary.
The nation grew out of stated words of equality, yet it was profoundly unequal from its inception. We have been in a constant struggle to achieve equality ever since those first days of the nation.
The Declaration stated it to be self-evident that all men are created equal. But they may have meant Whites-only, and men only. Our nation was built on a slave economy. The founding document—the Constitution—accepted the premise of the inherent inequality of a race of people, and labeled them three-fifths persons. The Great Document—and consequently the nation—was founded on compromise, allowing for the slave states to continue engaging in the slave trade and enslaving Africans and African–Americans.
Still, there were bright spots. While voting was in large part restricted to White, literate, propertied, males, the franchise was still more universal than in other nations. While seemingly regressive today, it was progressive for the times. There was a sense among many that it is important to create a participatory democracy. Perhaps more importantly, there is a promise of equality in the structure of our government and its three co-equal, coordinate branches. The Framers created an inefficient structure, with each branch checking the other, but in doing so, the framers protected the people, in another nod toward equality.
But still, individual rights and equality were elusive.
The founding compromise was doomed from the start, and nearly a century after declaring independence, the nation found itself embroiled in a war against itself, fighting over its very soul. Physical force won out, but such force cannot change the hearts and minds of people.
The 13th, 14th and 15th Amendments to the Constitution affirmed the results of the Civil War and to enshrine some version of equality into the Constitution. Constitutional amendment was not enough, as Jim Crow laws ensued, and lynchings and other intimidation methods served to demoralize and dehumanize African-Americans and to deny the apparent constitutional promise of equality.
And the U.S. Supreme Court did not interpret the Constitution as providing relief for such matters, or even promoting equality, as seen in Plessy v. Ferguson in 1896. But I am talking about hope, in the midst of reality. The reality is that race remains our nation’s unresolved dilemma. And the hope is the promise of equality that has always been in our nation, in the Constitution, but has been slow to evolve fully.
That hope has been expressed in the Court’s Brown decision in 1954, in one-person, one-vote case law that ensured equality of participation in the electoral process, and in the numerous constitutional amendments that have expanded the right to vote. And ultimately, the tale of hope found expression in the election of the first African-American President. I don’t mean that in the political sense, but in the sense that our nation struggles, but slowly finds ways to make progress toward equality of opportunity. We have a long way to go, but as we strive to create a more perfect union, the constitutional promise of equality is there.