Law 792:  Civil Rights Complementarity

American society has become increasingly fractured.  Lawmakers, policymakers, and the public encounter “culture war clashes” framed as zero-sum, either/or propositions. In this winner-takes-all mentality, the rights of some are pitted against the rights of others. Values that we share—such as mutual respect, justice, and dignity—are often lost in the discussion or resulting resolution.

 As one example, in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the United States Supreme Court erased penalties levied by the state of Colorado on the owner of a small cake shop in Colorado who refused to make a wedding cake for a same-sex couple, citing his religious beliefs about marriage. A rigorous debate ensued about whose “rights” should take precedence: LGBTQ persons or religious wedding vendors.  Writing for the majority, Justice Kennedy latched onto statements made by one civil rights commissioner to hold that Colorado violated its constitutional duty to craft and administer laws without “hostility to a religion or religious viewpoint.” Masterpiece Cakeshop did not resolve the competing claims, which are now back in front of the Court in the case of a website designer. 

 This course will explore whether modern clashes over civil rights may be resolved in ways that affirm the interests of all persons. It will explore the relative competence of courts and legislatures to find common ground among affected communities.  In particular, we will examine whether civil rights are like puzzle pieces that can be made to fit together by lawmakers who foster meaningful dialogue between affected communities—an approach known as civil rights complementarity.  Civil rights complementarity asks whether creative, “both/and” solutions can be found, at least as to some modern culture war clashes.

 This course will span a host of culture war clashes: from same-sex marriage to a path to inclusion for transgender athletes to abortion access. With each controversy, the goal will be to articulate the competing interests and analyze whether there is an approach that maximally respects all interests at stake—or reduces points of friction and trade-offs to the smallest number.  With many controversies, we will hear from sitting lawmakers about how they resolved clashes in actual enacted or introduced laws, what sticking points they grappled with, how they defused controversy, and instances when competing communities co-joined efforts and arrived at a compromise. Special attention will be paid to the value of dialogue. We will explore the challenges and advantages of having dueling “factions” sitting at the same table and discussing shared values and interests and how that process can reduce corrosive social and political tensions.

This course will canvas some of these clashes using readings from Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. & Robin Fretwell Wilson, eds., Cambridge University Press, 2018) (Introduction with William N. Eskridge, Jr.), as well as readings from cases and the media.

At the end of this course, you will be able to articulate how to arrive at a blueprint for legal measures reconciling competing interests and grasp the soft skills needed to enhance dialogue and diplomacy between stakeholders.

Sequence and Prerequisite: None

Evaluation: Final examination