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For Every Right a Remedy: Providing a Private Right of Action Under the Church Amendments
Full text linkIn 1973, Congress responded to the U.S. Supreme Court’s Roe v. Wade decision by passing legislation known as the “Church Amendments.” The Church Amendments were designed to protect healthcare workers from being compelled by their employers to perform or participate in abortion or sterilization procedures that conflict with their moral and religious beliefs. However, the Church Amendments suffer from an enforcement problem, largely due to Congress’s failure to explicitly provide a private right of action in the text of the statute. And thus far, courts have consistently refrained from interpreting it as containing an implied private right of action. Without a private right of action, enforcement of the Church Amendments has been left in the hands of the Department of Health and Human Services (HHS). Yet, with each new administration, HHS’s approach to enforcing this important legislation has varied, often leaving healthcare workers uncertain about the protection of their rights. Consequently, healthcare workers have been left without a clear legal remedy if their employer violates their rights under the Amendments. This Note considers potential paths for improving enforcement of the Church Amendments, and ultimately argues that Congress—not the courts—must amend the Church Amendments to explicitly provide a private right of action
Religious Employment and the Tensions Between Liberty and Equality
No full textLocated in Title VII of the Civil Rights Act of 1964 is an exemption for religious employers that is often misunderstood. Often courts and commentators mischaracterize it as a narrow privilege for religious employers to hire people of the same religion. But the statute’s text says otherwise. This article resolves interpretive debates about the meaning and application of the religious employer exemption through a close textualist reading that discovers a new understanding of the structure of Title VII. Our approach applies the tools of textualism, the prevailing theory of statutory interpretation. Paying attention to the text and structure of Title VII reveals the statute in a new light. The text reveals Title VII as a complex piece of legislation that preserves areas of employer liberty and autonomy, even as it guarantees greater employee equality. Viewing the structure of Title VII from the perspective of tensions between liberty and equality—a familiar theme in classical liberal theory—makes sense of Congress’s decision to protect liberty for small and tribal-related businesses, bona fide occupational qualifications, and other employers, even while removing barriers to employment opportunity elsewhere. That same perspective explains why Congress adopted an exemption for religious employers to shield them from the consequences of an unqualified egalitarian framework. A textualist reading of the exemption shows that a religious employer is authorized to make employment decisions based on religious criteria, free from any obligation under Title VII—but not to make employment decisions for non-religious reasons that the statute forbids. By articulating the exemption’s best reading, our approach holds the key to resolving a long-running circuit split along with several persistent questions and objections. In sum, this article is the first to demonstrate that a textualist reading of the religious employer exemption reveals Title VII as not merely an equality statute nor a liberty statut
Them’s Fightin’ Words—Maybe: Testing the Application and Boundaries of the “Fighting Words” Doctrine Using a Randomized Survey Experiment
Full text linkAdvanced note to readers: The survey experiment in this Article depicts acts of verbal violence, including the use of raceand gender-based epithets. Some of the relevant caselaw also includes offensive or harmful language.
As one of only a handful of exceptions to the First Amendment’s bar on laws proscribing speech, “fighting words” are defined as “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”1 It is unclear, however, how this relatively old doctrine applies to contemporary speech. Additionally, the standard is itself potentially problematic in application. Strictly interpreted, the standard appears to make words regulable and metes out punishment based on the perceived reaction of the victim (or onlookers) rather than the behavior of the wrongdoer. Consequently, we join others in arguing that the doctrine may fail to protect the interests of women, racial/ethnic minorities, or other groups when underlying assumptions based on victims’ characteristics form the basis of a factfinder’s determination as to whether a violent response is “likely.”
To explore these concerns, we conducted a qualitative survey of thirty recent cases that explored the fighting words standard in state courts and identified any factors—other than the content of the “fighting words” themselves—that courts consider when making a fighting words determination. Then, to gauge how the characteristics of the individuals involved in an altercation might impact a fighting words analysis, we conducted a randomized survey experiment incorporating these factors into vignettes to explore when the “common knowledge” of the “ordinary citizen”—or at least the consensus of the 705 survey respondents—suggests something is likely to provoke a violent reaction. Our results indicate that the racial and gender composition of the parties involved in an altercation do sometimes have statistically significant effects on whether an altercation is perceived as likely to provoke violence, at least within the limited confines of the survey. The survey results also indicate—although not always in a statistically significant manner—that there are observable differences in whether a violent reaction is predicted based on the nature of the epithet used, with racial epithets being perceived as particularly impactful, especially against racial minorities
