Current Issue – 23.1
RFRA v. ENDA
ENDA is not the LGBT community’s only hope of securing federal employment protections, and the bill’s demise is actually likely to benefit LGBT Americans in the long run. Federal courts and the U.S. Equal Employment Opportunity Commission (“EEOC”) are increasingly likely to regard LGBT-related employment discrimination as actionable gender discrimination under Title VII. The last decade, in particular, has seen a small, but marked, shift in favor of allowing LGBT persons to state cognizable gender discrimination claims. This development provides three distinct advantages vis-à-vis ENDA: Title VII is already the law of the land; Title VII offers more robust substantive protections than would be available under ENDA; and, most importantly, Title VII stands to be impervious to a RFRA challenge.
This article, therefore, rejects the notion that Hobby Lobby constitutes a significant setback for the LGBT community and instead contends that by rendering ENDA politically untenable for the foreseeable future, Hobby Lobby actually stands to aid LGBT Americans in their decades’-long quest to gain meaningful protections against employment discrimination. Part I provides a brief overview of prior legislative efforts to prohibit LGBT-related discrimination, with a focus on developments in the 113th Congress. Part II discusses the Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc. and its implications for ENDA. Part III analyzes the Hobby Lobby decision’s effect on President Obama’s executive order prohibiting LGBT-related employment discrimination by federal contractors and reveals that disagreement over whether the order should include an exemption for religious employers ultimately led the LGBT community to abandon ENDA. Part IV demonstrates that ENDA, unlike Title VII, would be susceptible to widespread RFRA challenges post-Hobby Lobby such that allowing Title VII to continue on its LGBT-inclusive evolution represents LGBT Americans’ best hope of attaining federal employment protections.
FOR GOODNESS’ SAKE: A TWO-PART PROPOSAL FOR REMEDYING THE UNITED STATES CHARITY/JUSTICE IMBALANCE
The approach to addressing economic and social needs in the United States strongly favors individual and corporate charity over the establishment and enforcement of economic and social rights. This charity/justice imbalance has a severely negative impact on the nation’s poor, who struggle with inadequate access to healthcare, housing, and nutrition, despite high overall U.S. wealth. This article suggests a two-part approach for remedying the charity/justice imbalance in the United States. First, the U.S. should eliminate the charitable tax deduction, a policy that does not effectively address economic and social needs, forces an inequitable poverty relief and tax burden on the middle class, and lulls the nation into a false sense of complacency about its poverty crisis. Second, the U.S. should replace the deduction with ratification of the International Covenant on Economic, Social and Cultural Rights. This two- part process would reverse the U.S. legacy of avoiding enforceable commitments to economic and social rights. Charity would take a step back and justice a step forward.
This article seeks to establish a dialogue on nutritional labeling between the fields of behavioral science, law, and policy, in order to put into place a nutrition labeling policy informed by and tailored to the behavior of consumers. Improving disclosure has long been the purview of behavioral science. Rarely has this consideration been translated into the field of law and policy making. It is now essential to establish this dialogue; an Executive Order from September 2015 encourages the Federal Government to integrate insights from behavioral science (behavioral economics and psychology) into policy making to understand how people make decisions, and how they use and respond to government policies.
The recommendations found in the Executive Order are of particular relevance to the recent efforts of the Food and Drug Administration (FDA) to reform its two-decade old Nutrition Facts Label. Against this background, this article demonstrates that insights from behavioral science have the potential to contribute to creating a robust nutrition disclosure that better informs consumers, improves their ability to make healthy decisions, and effectively helps fight against obesity and chronic diseases.
In practice, this article argues that nutrition labeling in the U.S. needs to be complemented by a highly simplified, standardized and visually appealing nutrition labeling scheme. This scheme should be government-led and disclosed on the front of food packages. It brings to the attention of policy makers recent studies in the sphere of behavioral science. Such an initiative would facilitate access and use of nutrition information, eventually nudging consumers stronger toward healthier consumption decisions.
RADICAL OPTIONS FOR SMALL TOWN PUBLIC HOUSING
Public housing is one of our country’s strongest tools for combatting poverty and homelessness. Operating outside of the private market al- lows public housing to escape much of the discrimination of private commerce. In addition, public housing’s ability to form communities provides many with a type of support otherwise wholly absent from gov- ernment subsidy programs. However, for years public housing has been devastatingly underfunded. Today, the U.S. Department of Housing and Urban Development is promoting a solution to its underfunding through a new program that would convert this public resource to a private fund- ing scheme. This is the first time any federal public housing redevelop- ment program has been available to small towns, and it may be the last such opportunity for these communities. This Article explores the strengths and weaknesses of this new program using Charlottesville, Virginia, as a case study for how it could be effectively employed. Char- lottesville has gone through many of the common changes and problems of other public housing programs—a racially discriminatory inception followed by decades of neglect. This Article argues that the new pro- gram has many problems, but that they are solvable. The program does not adequately protect long term public housing, but creative structuring, like ground leases, could provide a solution. The program also does not provide adequate tenant input, notice, and relocation, but an engaged and active community of tenants could overcome these problems. While the new program is not perfect, many small towns, like Charlottesville, Virginia, cannot afford to wait.