A Note from Prof. Hila Keren on “The Alarming Legal Strategy Behind a SCOTUS Case That Could Undo Decades of Civil Rights Protections”

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The Supreme Court has recently agreed again to hear businesses’ claim that they should be allowed to refuse to serve LGBTQ clients due to their owners’ religious beliefs. Its recent decision to review an appeal on the decision of the Tenth Circuit in 303 Creative LLC v Elenis is a bad sign for the LGBTQ people, their allies, and anyone who cares about civil rights in this country. Is the highest court in the country—now controlled by a conservative supermajority—going to change decades of insisting that businesses will serve everyone? Are we about to go back to darker times of a segregated marketplace?

In an article published last week by Slate, Professor Hila Keren (Southwestern Law School) explains how the case arrived at the Supreme Court by using unprecedented legal strategy utilized by the conservative advocacy group Alliance Defending Freedom. Her Slate piece, titled The Alarming Legal Strategy Behind a SCOTUS Case That Could Undo Decades of Civil Rights Protections, introduces only the tip of the iceberg. It reveals how by litigating the matter before any dispute actually happened, businesses manage to conceal the humiliation of the LGBTQ community that they seek permission to inflict.

Yet, readers of this digest would be interested to know that this short piece is based on a deeper study of the issue in a forthcoming law review article, where Professor Keren draws heavily on the vulnerability theory. There, Professor Keren suggests liberating ourselves from the confines imposed by discrimination analysis and an individualized neoliberal worldview. Instead, she uses vulnerability analysis to argue that we must understand refusals to serve some people in the marketplace in terms of resilience allocation. When some market actors use powers awarded to them by law to harm other market participants, they perform what Professor Keren has called “resilience drainage.”

You can read Professor Keren’s Slate article here.

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