Proportionality: A Way Forward for Resolving Religious Claims?
This essay gives an introduction to the idea of proportionality as a public law concept and argues that it is ideally suited to deciding conflicts between religious claims and the public interest or the rights of others. In particular it argues that a fact-specific resolution of claims can reduce societal tensions.
Should Religious Groups Be Exempt from Civil Rights Laws?
Should a private religious university lose its tax exempt status if it bans interracial dating? Should a religious school be able fire a pregnant married teacher because her continued work would violate the church's view that mothers of young children should not work outside the home? Should a religious social service agency, such as Catholic Charities, be exempt from a state regulation banning discrimination in the delivery of social services on the basis of sexual orientation? Should religious organizations be exempt from civil rights laws? This article argues that these questions raised difficult normative issues that have been answered practically by reference to the varying effects of historical social movements, producing the differential treatment of race, gender, and sexual orientation laws. The article explores avenues for negotiating solutions other than full exemptions or no exemptions. Besides the instrumental goal of solving - or avoiding - complex political and legal problems, this question of stance injects the dimensions of virtue ethics and value-added negotiation. In so doing the article proposes ways to pursue productive stances toward clashes over religious exemption claims is highly relevant to sustaining and replenishing both American pluralism and constitutional protections for minority groups.
Between Facts and Norms: Agency Statutory Interpretation as an Autonomous Enterprise
† With apologies to Jurgen Habermas, Between Facts and Norms, trans. by William Rehg (Cambridge, MA: MIT Press, 1996). I owe an enormous debt of gratitude to Josh Rosenstein, Mike Shumsky, and Steven Wu for research assistance in the preparation of this article. The present text is a revision of an article first published as ‘Agency Statutory Interpretation’ in Philip Frickey, ed., Issues in Legal Scholarship: Dynamic Statutory Interpretation (Berkeley, CA: Berkeley Electronic Press, 2002), online: Berkeley Electronic Press <http://www.bepress.com/ils/iss3/art9>. 1 Perhaps the strongest statement of this is John Willis, ‘Canadian Administrative Law in Retrospect’ (1974) 24 U.T.L.J. 225 [‘Retrospect’]. In other writings Willis sometimes characterized the usual approach as ‘conceptual’ – see John Willis, ‘Three Approaches to Administrative Law: The Judicial, the Conceptual, and the Functional’ (1935) 1 U.T.L.J. 53 [ ‘Three Approaches’] – or ‘ideological,’ as in his famous send up of the McRuer Report: John Willis, ‘The McRuer Report: Lawyers’ Values and Civil Servants’ Values’ (1968) 18 U.T.L.J. 351 [‘Lawyers’ Values’]. 2 Willis, ‘Retrospect,’ supra note 1 at 227.