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Gay Rights vs. Religious Freedom

History and Recent Developments in Same-Sex Marriage Litigation

State Courts Project White Paper
Austin R. Nimocks May 28, 2014

The purpose of this paper is to provide a comprehensive national survey of recent cases regarding same-sex marriage laws. The cases span over half the states and are being litigated in both federal and state courts. We hope this paper serves as a useful reference and guide to any questions you may have about the legal landscape of same-sex marriage.....[Read Now!]

Employment Non-Discrimination Act - Podcast

Religious Liberties Practice Group Podcast
David E. Bernstein, William N. Eskridge, Jr. February 21, 2014

Prop 8 flagsA bill to enact the proposed Employment Non-Discrimination Act ("ENDA") was introduced into the 113th Congress and approved by the Senate by a 64-32 vote. The Act would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. Non-profit membership clubs and organizations that are solely religious are exempted, but religiously affiliated organizations (such as hospitals and schools) are not.

Proponents and opponents disagree about whether sexual orientation and gender identity discrimination is widespread and a serious problem. Proponents point, for example, to a field experiment in which job applications with a fictitious resumé including membership in a gay organization in college received substantially fewer invitations for interviews than did applications with a fictitious resumé identical except for the membership. Opponents note studies showing that gays have average or above-average incomes and conclude that discrimination does not seem to have impaired their earning potential.

There is also disagreement about the impact ENDA would have on people of faith. Proponents note that the religious exemptions of ENDA track those of other federal anti-discrimination laws. Opponents point out that disapproval of homosexual acts is a fundamental tenet of Christianity, Judaism, and Islam, as well as of many other faiths, and that ENDA would be the first American federal law to outlaw exercise of a mainstream belief of our major religions.

Featuring:

  • Prof. David E. Bernstein, George Mason University Foundation Professor of Law, George Mason University School of Law
  • Prof. William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School

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The First Amendment and Government Benefits - Event Audio/Video

2013 National Lawyers Convention
Lillian R. BeVier, David D. Cole, John C. Eastman, Martin S. Lederman, Timothy M. Tymkovich, Erik S. Jaffe November 22, 2013

The First Amendment and Government Benefits - Event Audio/Video

The government (federal, state, and local) offers a wide range of benefits to groups.  Some benefits are monetary subsidies.  Some consist of access to government property such as university classrooms and bulletin boards.  Some of the most important benefits are income and property tax exemptions, which the Supreme Court has said are tantamount to subsidies.  What sorts of speech-restrictive conditions may the government impose on such subsidies?  May the government insist that benefited groups refrain from using the benefits for religious commentary, for electioneering and lobbying, for speaking about abortion, or for creating “indecent” or “disrespectful” art?  May the government insist that benefited groups not discriminate in their choice of leaders or members?  May the government insist that benefited groups affirmatively expressive certain views (such as opposition to prostitution)?

This issue has divided the Court in a wide range of cases, such as Rust v. SullivanRosenberger v. University of VirginiaNEA v. FinleyChristian Legal Society v. Martinez, and, most recently, USAID v. Alliance for Open Society International.  It has also come up in the news, with the IRS’s investigation of Tea Party groups that apply for tax-exempt status – such investigations are closely tied to the statutory restrictions on electioneering and lobbying by tax-exempt groups.  And the issue has in recent years sometimes inverted the usual partisan divides: in Rosenberger and Christian Legal Society, for instance, it has been the conservatives who have argued for free speech restriction even when government-provided benefits are involved, and the liberals who have argued that speakers who accept government benefits must also accept the restrictions imposed on those benefits.

The Free Speech & Election Law Practice Group hosted this panel on "The First Amendment and Government Benefits" on Friday, November 15, during the 2013 National Lawyers Convention.

Free Speech: The First Amendment and Government Benefits
3:30 p.m. – 5:00 p.m.

State Room

  • Prof. Lillian R. BeVier, David and Mary Harrison Distinguished Professor of Law Emeritus, University of Virginia School of Law
  • Prof. David D. Cole, Professor of Law, Georgetown University Law Center
  • Dr. John C. Eastman, Professor, Henry Salvatori Professor of Law and Community Service; Former Dean (2007-2010); Director, Center of Constitutional Jurisprudence, Chapman University School of Law
  • Prof. Martin S. Lederman, Associate Professor of Law, Georgetown University Law Center
  • Moderator: Hon. Timothy M. Tymkovich, United States Court of Appeals, Tenth Circuit
  • Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

Mayflower Hotel
Washington, DC

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Religious Liberty & Conflicting Moral Visions - Event Audio/Video

2013 National Lawyers Convention
Kyle Duncan, William A. Galston, Robert P. George, Andrew Koppelman, Diarmuid F. O'Scannlain November 20, 2013

Religious Liberty & Conflicting Moral Visions - Event Audio/VideoIn a variety of contexts, from the HHS preventive services mandate to same-sex marriage, differing moral visions are in increasing conflict in the public square.  How will this conflict affect the American understanding of religious liberty?

The Religious Liberties Practice Group hosted this panel on "Religious Liberty & Conflicting Moral Visions" on Thursday, November 14, during the 2013 National Lawyers Convention.

Religious Liberties: Religious Liberty & Conflicting Moral Visions
12:00 p.m. – 2:00 p.m.
State Room

  • Mr. Kyle Duncan, General Counsel, The Becket Fund for Religious Liberty
  • Prof. William A. Galston, Ezra Zilkha Chair, Governance Studies Program, The Brookings Institution
  • Prof. Robert P. George, McCormick Professor of Jurisprudence and Director, James Madison Program in American Ideals and Institutions Department of Politics, Princeton
  • Prof. Andrew M. Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
  • Moderator: Hon. Diarmuid F. O’Scannlain, United States Court of Appeals, Ninth Circuit

Mayflower Hotel
Washington, DC

[Watch or listen now!]