inclusion, accommodation, and recognition - Harvard Law School

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INCLUSION, ACCOMMODATION, AND RECOGNITION: ACCOUNTING FOR DIFFERENCES BASED ON RELIGION AND SEXUAL ORIENTATION DOUGLAS NEJAIME*

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 signifi* Sears Law Teaching Fellow, The Williams Institute, UCLA School of Law; Associate Professor, Loyola Law School (Los Angeles) (beginning Summer 2009). J.D., Harvard Law School, A.B., Brown University. I am indebted to the Williams Institute for supporting this project. I would also like to thank the following individuals for their feedback: Rick Abel, Tony Alfieri, Scott Barclay, Stuart Biegel, Fred Bloom, Brondi Borer, Devon Carbado, Mary Anne Case, Amy Cohen, David Cruz, Scott Cummings, Kevin den Dulk, Gary Gates, Jennifer Gerarda-Brown, Suzanne Goldberg, Maryam Griffin, Lani Guinier, Janet Halley, Joel Handler, Cheryl Harris, Nan Hunter, Jerry Kang, Rob Kar, Sonia Katyal, Chris Littleton, Jennifer Mnookin, Melissa Murray, Shaun Paisley, Nancy Polikoff, Darcy Pottle, Jeff Redding, Adam Romero, Jennifer Rothman, Bill Rubenstein, Austin Sarat, Stuart Scheingold, Brad Sears, Ann Southworth, Dean Spade, Nomi Stolzenberg, Katherine Trisolini, Mary Valentine, Eugene Volokh, Jordan Woods, Steve Yeazell, and especially Russell Robinson. I am grateful to those in attendance when I presented this Article at the Williams Institute Works-in-Progress Spring 2008 Series, the 2008 Law & Society Conference, and the UCLA Law Faculty Colloquium. I am also indebted to Nima Eshghi, Michael Kavey, and Sharon McGowan for providing helpful information and materials. This Article benefited from excellent research assistance from Bram Alden and research support from the law librarians (and especially Lee Ann Fullington) at UCLA’s Hugh & Hazel Darling Law Library. Finally, I would like to thank the editors of the Harvard Journal of Law & Gender, especially Stefani Johnson, Daniella Genet, Katie Eubanks Grayson, and Sarah Bertozzi, for their thoughtful work on this piece.

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[Vol. 32

cant 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