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- Title
INNATE RELIGIOUS IDENTITY.
- Authors
Pearson, Kim H.
- Abstract
After Obergefell v. Hodges,1 conflicts over religious objections and anti-discrimination protections are being worked out in religious exemption laws. However, having a strong framework for accommodating interests is not limited to religious exemptions. In family law cases, specifically child custody and visitation, children's identity development is sometimes overlooked as an area for developing constitutional protection for identity groups. When courts attend to family connections and identity valuation by tapping into equal protection principles based on innateness, parents with disfavored identities can move from being seen as parents who are presumptively unfit to fit parents who are unfairly stigmatized because of their innate identity. Popular media stories suggest that there is scientific evidence that religiosity is a physiological feature of human development. Should religious rights advocates set the stage for framing religiosity as an innate identity, they could develop grounds for legal protection beyond those already in place under the First Amendment and a body of parenting rights developed over time in family law. Reframing religiosity as an innate identity in the way that race, gender, and sexual orientation are understood to be innate, and thus deserving of legal protection, would dramatically change the valuation of religious identity in a way that is not yet supported by the existing science nor merited by a lack of sufficient legal protections. When courts are attentive to children's religious identity, there is a robust framework of legal protection, religiosity is typically framed as a positive factor, and even disfavored religious groups still receive protections. Courts should be attentive to children's identity development because this area is a dynamic space for conceptualizing robust identity valuations that could positively impact constitutional protections for disfavored, vulnerable identity groups. At the same time that courts weigh the concerns of disfavored identity groups, they should be attentive to favored groups that seek to coopt the language of the oppressed to expand rights and protections that they are in no danger of losing.
- Subjects
RELIGIOUS right; ANTI-discrimination laws; EXEMPTION (Law); DOMESTIC relations; CUSTODY of children; EQUAL rights
- Publication
UMKC Law Review, 2016, Vol 84, Issue 3, p803
- ISSN
0047-7575
- Publication type
Article