Scholarly
My scholarship is sorted by subject matter on my cv, which has links to pdfs of most of my articles. Here are some pieces (starting with the most recent) that I regard as my most significant:
Bostock, LGBT Discrimination, and the Subtractive Moves, 105 Minnesota L. Rev. Headnotes 1 (2020).
In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The dissenting Justices, following the reasoning of several Court of Appeals judges, embraced a series of subtractive argumentative moves in order to argue that the statute does not prohibit discrimination that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy.
This article catalogues and critiques the subtractive moves. One may focus on (1) the law’s prototypical referent, or (2) the categories of objects that it happens to bring to mind, or (3) distinctions that feel familiar but which do not appear in the statute, or (4) formalist exceptions that are unrelated to the law’s language, or (5) the general expectations that were part of the law’s cultural background. One may also (6) claim that the law, read in its cultural context, simply doesn’t mean what it literally says. Each of these reaches outside the statute in order to defeat the law’s literal command. This strategy maximizes judicial discretion and betrays the promise of textualism.
How Could Religious Liberty Be a Human Right?, 16 Int. J. Const. Law 985 (2018).
A growing number of scholars think “religious liberty” is a bad idea. They oppose religious persecution, but think that a specifically “religious” liberty arbitrarily privileges practices that happen to resemble Christianity and distorts perception of real injuries. Both objections are sound, but religious liberty is nonetheless appropriately regarded as a right. Law is inevitably crude. The state cannot possibly recognize each individual’s unique identity-constituting attachments. It can, at best, protect broad classes of ends that many people share. “Religion” is such a class.
Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917 (2012).
Does an originalist reading of the Thirteenth Amendment support a right to abortion? Not long ago a negative answer seemed obvious enough to make the question silly. Since then, however, originalism has become more sophisticated. It is now understood that original meaning, not original intent, is the most appropriate originalist source of constitutional law. The original meaning of constitutional language sometimes focuses on paradigm cases: specific evils that the Constitution aims to keep from recurring. The Thirteenth Amendment’s purpose is to end the specific institution of antebellum slavery. A ban on abortion would do to women what slavery did to the women who were enslaved: compel them to bear children against their will.
Naked Strong Evaluation, review of Charles Taylor, A Secular Age, 56 Dissent 105 (Winter 2009).
In which I address the fraught question of whether morality is possible without religion.
Is Pornography ‘Speech’?, 14 Legal Theory 71 (2008).
Is pornography within the coverage of the First Amendment? A familiar argument claims that it is not. This argument reasons that (1) the free speech principle protects the communication of ideas, which appeal to the reason (the major premise); (2) pornography communicates no ideas and appeals to the passions rather than the reason (the minor premise); (3) therefore pornography is not protected by the free speech principle. This argument has been specified in different ways by different writers. The most prominent and careful of these are Frederick Schauer and John Finnis. Both founder on the attempt to distinguish pornography from art, which both would protect. If art, film, and literature should be protected, then this protection should extend to the pornographic subsets of these genres.
Does Obscenity Cause Moral Harm?, 105 Colum. L. Rev. 1635 (2005).
This essay will reconsider the fundamentals of obscenity law: the harm that the law addresses and the means by which the law tries to prevent that harm. Strangely, even though an enormous amount of scholarship examines this doctrine, these fundamentals have not been adequately addressed. The harm that the doctrine seeks to prevent is not offense to unwilling viewers. It is not incitement to violence against women. It is not promotion of sexism. Rather, it is moral harm – a concept that modern scholarship finds hard to grasp.
Liberals have not even understood the concept of moral harm, and so their arguments have often missed the point of the laws they were criticizing. Conservatives have understood the concept quite well, but have thought that it straightway entailed censorship. This essay is, to my knowledge, the first presentation of the liberal argument that does justice to the conservative case for censorship.
I will argue that the concept is a coherent one and that obscenity law tries to prevent a genuine evil. But I will conclude that the law is too crude a tool for the task. A sound understanding of obscenity law’s ambitions reveals that the doctrine is unworkable and should be abandoned.
The Fluidity of Neutrality, 66 Rev. of Politics 633 (2004).
The political ideal of neutrality toward conceptions of the good is unsustainable at the extremely abstract level proposed by some liberal theorists. Neutrality is nonetheless a valuable political ideal. One of the many ways that government can go wrong is to take a position on some question that it would, all things considered, be be er for it to abstain from deciding. The classic example is the question of which (if any) religion is true. The idea of neutrality holds that government ought to avoid this pathology.
Secular Purpose, 88 Va. L. Rev. 87 (2002).
Part I of this Article will describe the secular purpose doctrine and the objections that have been offered against it. It will then describe the counterarguments of Justice Sandra Day O’Connor, the only member of the Court who has responded to these objections, and show how Justice O’Connor’s defense of the doctrine fails. Part II will explain that there must be a secular purpose requirement, because government may not declare religious truth.
This part will examine the idea that some laws are only intelligible within a particular sectarian tradition and thus implicitly declare religious truth. These are the paradigmatic violations of the secular purpose requirement. If the basis of the secular purpose requirement is understood in this way, then it is easy to answer most of the objections that have been raised against it.
Part III will address the deepest of the objections to the secular purpose requirement, which claims that it forces the government to treat religion with callous indifference. The answer, I will argue, is to define the secular purpose requirement as permitting government to favor religion in general, so long as its support does not violate the axiom that government may not declare religious truth. Part IV will show that the theory of secular purpose that I offer fits the case law well. In particular, it will show how the theory of the Establishment Clause developed in Part III can explain the perennial puzzle of tax exemptions for churches. It will conclude by reexamining the secular purpose cases and showing how my account makes sense of most of them.
The cases that the theory cannot defend, I argue, are in fact wrongly decided. Part V will consider the implications of this argument for other areas of religion clause doctrine and for constitutional law generally.
Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. Rev. 197 (1994). Cited as one of the 25 most influential articles ever published in the N.Y.U. Law Review. See 75 N.Y.U. L. Rev. 1561 (2000) (commentary by David Richards).
Most efforts to secure constitutional protection for lesbians and gay men against discrimination have unsuccessfully employed privacy and suspect classification arguments. This article argues that discrimination against lesbians and gay men is sex discrimination which a state may not practice without showing a sufficiently important state interest. Focusing on Hawaii’s recent breakthrough case, Baehr v. Lewin, I argue that the Hawaii Supreme Court correctly employed formal equal protection analysis to invalidate that state’s prohibition of same-sex marriage. I then expand the analysis by examining the reasons why a sex-based classification should trigger heightened scrutiny. Laws that discriminate against lesbians and gay men reinforce the hierarchy of males over females, an evil the equal protection clause has been explicitly used to combat. Both the formal and substantive arguments draw on the reasoning in analogous cases that invalidated miscegenation laws. The only interests the state can advance to justify laws that discriminate against gays are either trivial or impermissible. Such laws therefore cannot satisfy heightened scrutiny and are unconstitutional.
The Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 Yale L. J. 145 (1988).
In which I first made the sex discrimination argument that persuaded the Court in Bostock.
