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This Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents filed in Fulton v. City of Philadelphia addresses the propriety of an analogy to race discrimination in public accommodation cases involving sexual orientation discrimination. The race analogy in sexual orientation cases proceeds as follows: Advocates and judges widely agree that courts should, and would, reject a religious exemption claim by a public accommodation—such a foster care agency—seeking to turn away an African-American or interracial couple based on the public accommodation’s religious beliefs that Blacks are inferior to whites or that the races should not mix. The race analogy in today’s religious exemption cases is attractive to LGBT-rights advocates because the Court has—in the 1960s case of Piggie Park v. Newman—rejected a religious exemption claim in the context of racial discrimination in public accommodations. The amicus brief addresses two common arguments made by exemption seekers against the race analogy. First, today’s exemptions seekers bristle at the comparison to Piggie Park and to the vendors of the 1960s who sought to justify racial discrimination based on religious beliefs. They contend that the vendors of the 1960s were actually racists using religion as a cover for their bigotry. In contrast, today’s wedding vendors contend that they are asserting honorable and sincerely held religious beliefs that justify sexual orientation discrimination. This amicus brief asserts that the race analogy and the honorableness of today’s exemption seekers are not mutually exclusive because (1) the exemption seekers of the 1960s were viewed as honorable and sincere by courts and the public alike; and (2) courts need not look behind the asserted religious belief to validate or critique it, but must instead accept the asserted belief at face value; any normative characterization of the asserted religious belief is thus irrelevant assessing the propriety of the race analogy. Second, today’s exemption seekers argue that the race analogy is improper because race is subject to strict scrutiny in an equal protection analysis, whereas sexual orientation is subject to, at most, intermediate scrutiny. This argument fails because it is based on a fundamental misunderstanding of two things that are not commensurate: the relationship between the equal protection tiers of scrutiny, on one hand, and claims for religious exemptions from antidiscrimination law, on the other. The amicus brief concludes that analogizing to race in this case requires no improper governmental assessment of religious beliefs, just as courts made no such assessment in the 1960s. The race analogy, including an analogy to Piggie Park, should thus be used in the Fulton case and others like it.

This essay assesses the debate over “moral reading” and “originalist” approaches to constitutional interpretation, as elaborated in James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalism (2015), by evaluating the recent, momentous constitutional controversy in the United Sates of America over access by same-sex couples to civil marriage. Justice Kennedy’s landmark majority opinion in Obergefell v. Hodges (2015), which held that such couples have a fundamental right to marry, employed a “moral reading” in emphasizing evolving understandings of constitutional guarantees of equality, the “promise of liberty” and the institution of marriage. By contrast to the dissenters, the majority rejected a static, narrow reading of the fundamental right to marry —and marriage— and stressed the role “insight” and generational progress. Evolving understanding played a similar role in Goodridge v. Department of Public Health (2013), which provided a template for Kennedy’s rejection of a narrow originalism focused only on historical practices or original intent. Such moral readings of the Constitution have played a significant role in making the Fourteenth Amendment less of (in Justice Ginsburg’s words) an “empty cupboard” for gay men and lesbians, just as they have played a role in making it less empty in the context of sex equality. This essay demonstrates how the contrasting approaches to interpretation in the majority and dissenting opinions in DeBoer v. Snyder (reversed by Obergefell) previewed the interpretive battle between the Obergefell majority and dissents, but with the sides reversed. It then observes that, while some legal scholars offered, in amicus briefs filed in Obergefell, originalist arguments for same-sex marriage, such arguments persuaded neither other originalist scholars nor the Obergefell dissenters.

The debate over legalizing same-sex marriage implicates the question of whether doing so would signal the end—or destruction—of the institution of marriage. The appeal to preserving a millennia-old tradition of marriage against change fails to reckon with the evolution that has already occurred. Invocations of gender complementarity between parents as essential to child well-being also conflict with growing recognition in family law that children's best interests can be served by gay and lesbian parents. Canada's path toward same-sex marriage suggests that impasse need not be inevitable. In the United States, this impasse stems in part from the problem that same-sex marriage serves as an emblem of everything that threatens marriage.

Robin West. Caring for Justice. New York: New York University Press, 1997. Pp. 356. Robin West is one of the most prolific1 and creative members of the legal academy. Her distinctive voice, as expressed in several books and numerous scholarly articles, informs and shapes debates within such diverse areas as constitutional theory (West 1990b; West 1994), feminist jurisprudence (West 1987; West 1988), and law and literature (West 1993). Indeed, some of her early articles concerning feminist jurisprudence (West 1987, West 1988) are now "classics" in a relatively new field of inquiry and appear in virtually every anthology or textbook in the field (Bartlett and Kennedy 1991, 201; Becker, Bowman, and Torrey 1994, 90; Fineman and Thomadsen 1991, 115; Frug 1992, 807; Smith 1993, 493; Weisberg 1993, 75; Weisberg 1996, 162). Such articles continue to inspire a rich body of both sympathetic and critical work by feminists and other scholars.

Acknowledgments Introduction Part I 1. Toward an Integrative Account of Parenthood 2. A Diversity Approach to Parenthood in Family Life and Family LawPart II 3. Uncoupling Marriage and Parenting 4. The Anthropological Case for the Integrative ModelPart III 5. Legal Parenthood, Natural and Legal Rights, and the Best Interests of the Child: An Integrative View 6. Family Diversity and the Rights of Parenthood Part IV 7. A Case for Integrated Parenthood 8. Developmental Outcomes for Children Raised by Lesbian and Gay Parents Part V 9. Biological and Psychological Dimensions of Integrative Attachments 10. Parenting Matters: An Attachment PerspectivePart VI 11. Gender and Parentage 12. Can Parenting Be Equal? Rethinking Equality and Gender Differences in ParentingPart VII 13. Transnationalism of the Heart: Familyhood across Borders 14. Transnational Mothering and Models of ParenthoodPart VIII 15. Of Human Bonding 16. The Other Side of the Demographic Revolution Epilogue About the Contributors Index