Taking Conflicting Rights Seriously

63 Pages Posted: 22 Sep 2020

See all articles by Netta Barak Corren

Netta Barak Corren

Harvard Law School; Hebrew University of Jerusalem

Date Written: September 1, 2020

Abstract

Conflicts between religious liberty and gender and LGBTQ equality are polarizing the American society, obsessing constitutional law scholars, and earning a slot of their own on the Supreme Court docket.

Despite the broad social significance of religion–equality conflicts, their legal analysis has been largely captured by a handful of high-profile cases and has ignored the varied ways in which conflicts are resolved on the ground, often outside the courtroom. As a result, lawmakers, scholars, and even courts fail to fully understand conflicts of rights and fail to con- sider all available tools to mitigate these conflicts.

This Article advances a methodological and normative approach that improves law’s ability to take conflicts between religion and equality seriously. First, I expose the misperceptions caused by the excessive focus on court cases and establish the need for empirical research of conflicts of rights. Second, I demonstrate the contribution of the suggested approach qualitatively, using evidence from in-depth interviews with religious leaders and reports of conflicts from a range of contexts. The findings shed light on the existence of systematic variation in the religious regulation of sexual nonconformity. In contrast to common assumptions, conservative religious leaders do not rush to secure a license to discriminate, nor do they perceive religion and equality as necessarily incommensurable. Instead, they attempt to find accommodations on the ground, drawing on distinctions of sphere and role in an attempt to square traditional and liberal norms, often reasoning their actions in terms of compassion, forgiveness, evangelism, and humility.

These findings shed new light on the evidentiary value of selective enforcement and religious consistency. I consider three models for normatively analyzing these questions, discuss the implications of the findings for the present and future of religion–equality conflicts—will they escalate or evaporate?—and offer several tools for political negotiators aiming to resolve rights conflicts outside the courtroom.

Keywords: religious liberty, equality, LGBTQ discrimination, gender discrimination, culture wars, Catholic church, conflicts of rights, conflicting rights

Suggested Citation

Barak Corren, Netta, Taking Conflicting Rights Seriously (September 1, 2020). Villanova Law Review, Vol. 65, No. 2, 2020, Hebrew University of Jerusalem Legal Research Paper 20-33, Available at SSRN: https://ssrn.com/abstract=3684879

Netta Barak Corren (Contact Author)

Harvard Law School ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

Hebrew University of Jerusalem ( email )

Mount Scopus
Jerusalem, Jerusalem 91905
Israel

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