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Inclusion, Accommodation, and Recognition: Accounting for Differences Based on Religion and Sexual Orientation


Douglas NeJaime


University of California, Irvine School of Law

July 30, 2009

Harvard Journal of Law and Gender, Vol. 32, No. 2, 2009
Loyola-LA Legal Studies Paper No. 2009-26

Abstract:     
This Article analyzes the rights claims and theoretical frameworks deployed by Christian Right and gay rights cause lawyers in the context of gay-inclusive school programming to show how two movements with conflicting normative positions are using similar representational and rhetorical strategies. Lawyers from both movements cast constituents as vulnerable minorities in a pluralistic society, yet they do so to harness the homogenizing power of curriculum and thereby entrench a particular normative view. Exploring how both sets of lawyers construct distinct and often incompatible models of pluralism as they attempt to influence schools’ state-sponsored messages, this Article exposes the strengths as well as the limitations of both movements’ strategies. Christian Right lawyers’ free speech strategy - articulating religious freedom claims through the secular language of free speech doctrine - operates within an inclusion model of pluralism. This model stresses public participation and engagement with difference. After making significant advances over the past several years, lawyers have begun to employ the inclusion model with some success in the school programming domain, despite significant doctrinal and remedial limitations. At the same time, Christian Right lawyers assert parental rights and free exercise claims in curricular challenges. Such claims rely on an accommodation model of pluralism that permits selective withdrawal based on religious beliefs and thereby resists active engagement with difference. This strategy struggles in the face of a well-accepted view of civic education that values exposure to diversity - a view bound up with the success of the Christian Right’s inclusion model of pluralism. Gay rights lawyers respond to Christian Right claims by drawing on a left multicultural model of pluralism. This model constitutes lesbians and gay men as identity holders (rather than sex actors), and in doing so succeeds in justifying the inclusion of sexual orientation in programming that prioritizes diversity. The left multicultural claim stalls, however, when it demands the state’s affirmative cultivation of respect by asserting students’ rights to gay-inclusive instruction. In the end, both the Christian Right and gay rights movements make important advances yet face significant tensions as they craft doctrinal claims that operate within competing models of pluralism.

Number of Pages in PDF File: 81

Keywords: cause lawyering, gay rights, Christian Right, religion, sexual orientation, pluralism, multiculturalism

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Date posted: July 31, 2009 ; Last revised: August 11, 2009

Suggested Citation

NeJaime, Douglas, Inclusion, Accommodation, and Recognition: Accounting for Differences Based on Religion and Sexual Orientation (July 30, 2009). Harvard Journal of Law and Gender, Vol. 32, No. 2, 2009; Loyola-LA Legal Studies Paper No. 2009-26. Available at SSRN: http://ssrn.com/abstract=1441497 or http://dx.doi.org/10.2139/ssrn.1441497

Contact Information

Douglas NeJaime (Contact Author)
University of California, Irvine School of Law ( email )
535A Administration
Irvine, CA 92697-1000
United States
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