NICHOLAS A. MIRKAY, Widener University - School of Law
Email: namirkay@widener.edu

With federal subsidies to charitable organizations exceeding $232 billion for fiscal years 2007 to 2011, the public benefit conferred by such organizations is an increasingly hot topic for Congress, the Internal Revenue Service and the entire nonprofit sector. Despite the national debate over nonprofit versus for-profit hospitals and excessive executive compensation, and the call for stricter governance and regulation, one recurring activity of charities appears to fly under the radar of reformers - discrimination. As illustrated in real-life occurrences contained in pages 3 and 4 of the article, seemingly widespread discrimination by charities exists not only with respect to employment, but more importantly in providing services or engaging in activities for which the organization was originally granted tax-exempt status (e.g., education). The primary bases for such discrimination are currently sexual orientation and marital status.

This article contends that these instances of discrimination are intrinsically incompatible with such organizations' "charitable" purpose and mission, and with society's notion of what constitutes a charity. This article contends that such organizations should not continue to enjoy the benefits of tax-exempt status if they engage in discriminatory practices or maintain discriminatory policies. To combat such discrimination, this article proposes the inclusion of an expansive nondiscrimination requirement within Section 501(c)(3). Such a requirement ensures that the stream of tax-deductible dollars (generated by the charitable contributions deduction) received by charities is not used to discriminate against any member or segment of society. The proposal transforms Section 501(c)(3) into the "gold standard" for all tax-exempt organizations, ensuring that their beneficiaries are as diverse and all encompassing as the taxpaying public from whom such organizations draw their support.

NICHOLAS A. MIRKAY, Widener University - School of Law
Email: namirkay@widener.edu

Religious organizations occupy an enviable legal stature in American society, receiving over 200 exemptions and other regulatory breaks in federal legislation over the last 18 years alone. Religious organizations enjoy numerous federal as well as state and local tax exemptions representing hundreds of billions of dollars in foregone revenue. The propriety of these lucrative tax exemptions must be questioned when religious organizations engage in discrimination against members of society. As illustrated in real-life occurrences contained in pages 3 and 4 of the article, ostensibly widespread discrimination by such organizations exists not only with respect to employment, but more importantly in providing services or engaging in activities for which the organization was originally granted tax-exempt status (e.g., education). The primary bases for such discrimination are currently sexual orientation and marital status.

In a prior article published in the WISCONSIN LAW REVIEW, I proposed a solution to the problem of discrimination by charitable organizations (a term commonly interpreted to include religious organizations) - enact a broad and well-defined nondiscrimination condition on tax exemption under Section 501(c)(3) of the Internal Revenue Code. Inherent in that proposal is the notion that discrimination by charitable organizations is intrinsically incompatible with such organizations' purpose and mission. Although my prior article briefly addressed the constitutional and other difficulties inherent in applying a nondiscrimination requirement to religious organizations, it acknowledged the necessity of additional and more thorough discussion on the issue - thus, the focus of this Article. Accordingly, this Article examines the propriety and constitutionality of subjecting religious organizations to a nondiscrimination requirement and crafting a more narrow church exception to that requirement. It proposes statutory and regulatory amendments to prevent certain church-affiliated organizations from avoiding the nondiscrimination requirement.

BELINDA SMITH, University of Sydney - Faculty of Law
Email: belinda.smith@usyd.edu.au

Australian anti-discrimination laws reflect an individual complaints-based model of anti-discrimination laws, seeking to address discrimination and inequality by providing individual victims with the right to take legal action against the individual discriminator for compensation. Under this fault-based system, employers are prohibited from discriminating and, in the event of transgression, liable to the victim but otherwise not specifically required to be proactive in eliminating discrimination or promoting equality.

While they were radical at the time of their introduction, over thirty years ago, the significant limitations of Australian anti-discrimination laws in addressing the many different forms of discrimination have since surfaced, signaling the need for development. The objective of these laws is to eliminate discrimination', the regulatory mechanisms in the legislation are largely ineffective at achieving this goal. The most recent developments or proposals in Australia - namely, in respect of age and family responsibilities discrimination - do little more than extend the existing framework to new grounds, providing a limited right of redress and a symbolic statement, but failing to acknowledge and address the regulatory limitations of system at large.

In this paper, I provide an outline of the current anti-discrimination laws in Australia, an analysis of the regulatory framework established by this legislation, and a closer look at the elements and difficulties relating to proof of direct and indirect discrimination within this framework. Following a brief outline of affirmative action legislation, I note three recent developments in the final part that illustrate both innovation and limitation: the introduction in 2004 of a federal Age Discrimination Act; the introduction of 'Disability Standards' in respect of public transport and education; and the push to establish wider anti-discrimination law protection for workers with family responsibilities.

DOUGLAS LINDER, University of Missouri at Kansas City - School of Law
Email: linderd@umkc.edu

All other civil rights groups in 1964 considered Mississippi - the most impenetrable state in the union - hopeless. The decision of Bob Moses of the Student Non-Violent Coordinating Committee (SNCC) to shake up the Magnolia State by sending six hundred young volunteers into every corner of the state to register new black voters brimmed with danger. Moses explained to a first gathering of student volunteers, When you're not in Mississippi, it's not real. And when you're there, the rest of the world isn't real. In the early morning hours of June 20, Mickey Schwerner, Andrew Goodman, and James Chaney boarded their blue CORE station wagon and left the rolling hills of southwestern Ohio, bound for Meridian.

This article recounts the career of John Doar of the U.S. Department of Justice Civil Rights Division and his role in prosecuting the Mississippi Burning Trial in 1967. Looking back nearly more than thirty years later, Doar believed that the trial helped Mississippi get beyond the caste system. Up to that time, no white person in the state had ever been convicted for violence against a black. After the trial, the good people of Mississippi became more confident that they could move away from their past.

DOUGLAS LINDER, University of Missouri at Kansas City - School of Law
Email: linderd@umkc.edu

One evening, Circuit Judge James Horton, Jr. was having dinner with his family in his antebellum home in central Athens, Alabama; Limestone's county seat. Dinners in the Horton household were an opportunity to discuss events of the day. In early March of 1933, there were plenty of events to discuss. The ringing of their party line phone interrupted the Horton family dinner. The judge excused himself from the table. When he returned a few minutes later, he looked grim. The retrial of the Scottsboro Boys had been transferred to Decatur in neighboring Morgan County. He was to be the presiding judge. Sensational accounts of the alleged rape had run in local papers. Rapid-fire trials, beginning just twelve days after the arrests, gave locals little reason to think their initial view concerning the defendants' guilt was wrong. Few bothered to speculate if the evidence might have looked different had the defendants been given better representation than the half-hearted defense provided by their attorneys.

The announcement that Judge James Horton would preside at the retrial of the Scottsboro Boys was received favorably. The Limestone Democrat, Horton's hometown, praised his unusually equable nature, great legal ability and fairness. Horton would give the foreign defense no reason to complain, wrote the paper's editor. The lead prosecutor, Alabama Attorney General Thomas Knight, also expressed pleasure with the choice, telling the press that Horton would make an excellent judge. There was little in Judge Horton's background to give Knight cause for concern. As a state representative and senator for ten years, Horton had devoted himself to election reform and road construction, not contentious social issues. One observer noted, Horton was not very notably social-minded, and was liberal only in the sense of putting the rules of the game above the desire to win. He held many of the beliefs one would expect of a large landowner, politician, and planter in a small town in rural South. He accepted, as did the vast majority of white Alabamans in 1933, the rightness of segregation.

Horton approached the upcoming retrial of the Scottsboro Boys with the resolve - despite his belief that the defendants were most likely guilty - to do everything he could to present a trial that would do the South proud. Despite the knowledge that setting aside the Patterson verdict would likely mean an end to his judicial career, the decision for Horton was not a difficult one. A judge must do his duty. My mother early taught me a phrase she said was her father's motto, Horton later recalled. It has frequently come to mind in difficult situations. The phrase Horton learned on his mother's knee was Justitia fiat coelum ruat - Let justice be done though the Heavens may fall.

Shortly after Horton's death, county officials installed a plaque on the south wall of the second-floor Limestone County courtroom in which he read his opinion setting aside the jury's verdict in the Patterson trial. In raised bronze on the plaque are inscribed words from the judge's instructions to the jury: So far as the law is concerned it knows neither native nor alien, Jew nor Gentile, black nor white. This case is no different from any other. We have only to do our duty without fear or favor.

JAMES R. GADWOOD, Affiliation Unknown
Email: gadwoodj@gmail.com

JuryQuest is a computer program which claims to provide an empirical, scientifically-tested basis for determining, ex ante, the attitudinal predispositions of prospective jurors. By relying on seven demographic characteristics - race, gender, age, education, occupation, marital status, and prior jury service - JuryQuest claims to be able to determine whether a prospective juror is likely to be more sympathetic (or just plain biased) towards a particular side. Once such determinations are made, an attorney need only exercise his peremptory challenges to eliminate the unfavorable jurors. Ethics and effectiveness aside, JuryQuest poses a troubling constitutional issue which has received surprisingly little attention. In the 1986 landmark decision Batson v. Kentucky, the Supreme Court held that the Fourteenth Amendment's Equal Protection Clause prohibits race-based peremptory challenges. This holding was later extended to peremptory challenges based on gender. At first brush then, attorneys who exercise peremptory challenges on the basis of JuryQuest - which unabashedly considers race and gender - should, at the very least, pause to consider whether their use of JuryQuest implicates Batson and its progeny. As background, Part I will provide a brief history of the jurisprudence leading up to and following the Batson decision. Part II will unpack the three-step Batson framework in order to provide necessary insight into the operation of each step. Part III will introduce JuryQuest and explain its methodology. Part IV will then analyze the interaction between JuryQuest and the Batson framework, arguing that the use of JuryQuest - and, indeed, JuryQuest itself - violates Batson in certain jurisdictions, but not in others. Additionally, Part IV will argue that, in jurisdictions that would find a Batson violation, JuryQuest will ultimately turn the three-step framework into a one-step evidentiary showing. Part V discusses proposals designed to foster disclosure of JuryQuest's use, and is followed by a brief conclusion.

DAVID ALAN SKLANSKY, University of California, Berkeley - School of Law
Email: dsklansky@law.berkeley.edu

One of the greatest practical achievements of Katz v. United States, now largely forgotten, was helping to restrict the once common practice of spying on men in toilet stalls to catch homosexuals. This may not have been accidental. The conception of privacy championed in Katz resonated strongly with pervasive concerns in the 1960s about homosexuality and its policing. The Justices, or at least some of them, may well have understood that Katz would make it harder for the police to keep toilet stalls under clandestine surveillance, and there is reason to believe they would have welcomed that result. In fact, homosexuality and its policing - especially male homosexuality and its policing - may be a suppressed subtext of modern criminal procedure more broadly. Anxieties about peepholes and undercover decoys in public lavatories, and about related investigative tactics targeted at homosexuality elsewhere, helped shape what the Court thought about the police and about the kinds of threats they posed. Traces of those anxieties may be visible in three pervasive features of the criminal procedure revolution: the preoccupation with protecting a particular kind of privacy, the view of police as psychologically antidemocratic, and the commitment to reining in police discretion with judge-made rules.

SUE IRION, Northern Kentucky University - Salmon P. Chase College of Law
Email: irions1@nku.edu

Section 19 of the National Labor Relations Act requires unions to permit employees to accommodate employees on the basis of religion by permitting religious objectors to opt out of a union notwithstanding a union shop agreement. Section 19, however, violates the First Amendment in at least two ways. First, it defines religion by referring to specific denominations, thus creating a denominational preference. Second, it applies only to employees who belong to a bona fide religion, thus creating a preference for established religions and entangling courts in religion by requiring courts to evaluate religious content.

Title VII similarly contains a religious accommodation clause which has been interpreted to permit religious objectors to opt out of a union. It does not, however, contain the same constitutional infirmities as Section 19, because Title VII defines religion broadly without referring to specific denominations and without requiring inquiry into whether a religion is bona fide. Because Title VII offers employees at least as much religious protection as Section 19, without violating the constitutional rights of employees, this article argues that Section 19 should be repealed.