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Professor Robin Wilson Cited in R.I. Same-Sex Marriage Debate

April 10, 2013 Leave a comment
Robin Wilson

Robin Fretwell Wilson

An article discussing a potential vote on a same-sex marriage proposal in Rhode Island quoted  R.I. Senate President M. Teresa Paiva Weed as favorably citing an op-ed penned by W&L Law Professor Robin Fretwell Wilson:

The House version of the bill passed in January contains only a narrow exemption for religious institutions, said Paiva Weed. But a competing measure by an opponent, Sen. Frank A. Ciccone, would ask voters to decide, and includes broader exemptions that same-sex marriage supporters call discriminatory.

Paiva Weed said that one of the “better explanations” she’s read regarding exemptions was a Feb. 21op-ed piece in The Providence Journal by Robin Fretwell Wilson, a Washington & Lee University law professor. Wilson criticized the Rhode Island House bill for providing only “fake protections,” arguing that “religious liberty and same-sex marriage share an inseparable fate.”

To read Professor Wilson’s op-ed referred to above, click here.

Prof. Robin Wilson Publishes Commentary on Religious Liberty Issues

January 30, 2013 Leave a comment
Prof. Robin Fretwell Wilson

Prof. Robin Fretwell Wilson

Washington and Lee law professor Robin Fretwell Wilson has authored two recent commentaries dealing with religious liberty issues.

One editorial appeared in the Tulsa World and focused on Hobby Lobby Store, Inc. and the company’s decision to challenge the Affordable Care Act (ACA) requirement that employers provide access to birth control. In the commentary, Prof. Wilson examines the costs to employers, and to employees, if companies choose not abide by the ACA’s rules. Hobby Lobby faces a $1.3 millon a day fine for each day it fails to comply with certain provisions of the ACA. But Wilson argues that companies can get around this by simply dropping coverage all together for employees.

The full commentary is available online.

Prof. Wilson also published a guest column in the State Journal-Register (Springfield, Il), co-authored with W&L Law graduate Anthony Kreis, now a Ph.D. candidate at the School of Public and International Affairs at the University of Georgia. In the piece, Wilson and Kreis argue that the state of Illinois should include even stronger religious protections in a bill to legalize same-sex marriage in the state. They point to laws passed recently in other states that bolstered religious liberty protections while supporting marriage equality.

The full column is available online.

Prof. Wilson is co-editor of the book “Same-Sex Marriage and Religious Liberty: Emerging Conflicts.”

Professor Robin Wilson to be Featured at Religious Freedom Conference in Sydney

December 13, 2012 Leave a comment
Prof. Robin Fretwell Wilson

Prof. Wilson

The University of Sydney in Australia is hosting a conference entitled The Scope and Limits of Religious Freedom in Australia.  W&L Law Professor Robin Fretwell Wilson is the featured guest speaker.  Check out the conference announcement here, which provides additional details.  It will be held on Thursday, March 15, 2013.

Professor Robin Fretwell Wilson is the Class of 1958 Law Alumni Professor of Law. A specialist in Family Law and Health Law, her research and teaching interests also include Insurance and Biomedical Ethics.  Professor Wilson is the editor of four volumes: Health Law and Bioethics: Cases in Context (with Sandra Johnson, Joan Krause and Richard Savor, 2009); Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Rowman & Littlefield Publishers, Inc., 2008) (with Douglas Laycock and Anthony A. Picarello);Reconceiving the Family: Critique on the American Law Institute’s Principles of the Law of Family Dissolution (Cambridge University Press, 2006); and the Handbook of Children, Culture & Violence(Sage Publications, 2006) (with Nancy Dowd & Dorothy G. Singer).  Her articles have appeared in the Cornell Law Review, theEmory Law Journal, the North Carolina Law Review, and the San Diego Law Review, as well as in numerous peer-reviewed journals.

Today: Professor Robin Wilson at Georgetown Speaking on Religious Liberty

October 24, 2012 Leave a comment

Prof. Robin Wilson

W&L Law Professor Robin Fretwell Wilson has been invited to  invited to comment on Gerry Bradley’s new book, Challenges to Religious Liberty in the 21st Century.  Her comments will be part of an October 24 event at the The Berkley Center for Religion, Peace, and World Affairs at Georgetown University.  This invitation comes in connection with Professor Wilson’s forthcoming article entitled The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, which will be published in the Boston College Law Review in a few weeks.

Professor Wilson’s Article, which is available for download on SSRN, considers a burning issue in society today — whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate same-sex marriages. In all these contexts, religious objectors claim a special right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and may impose significant costs on others. Legislators and other policymakers have struggled with how to advance two compelling, and at times conflicting, values — access and religious liberty. This Article examines, and responds to, a number of “sticking points” voiced by legislators about a qualified exemption for religious objectors that would permit them to step aside from facilitating same-sex marriages so long as no hardship will result. These concerns bear an uncanny resemblance to reasons why some believe the Obama administration should not yield further on the coverage mandate. Professor Wilson’s Article maintains that religious accommodations qualified by hardship to others can transform what could be a zero-sum proposition into one in which access and religious freedom can both be affirmed.

Professor Robin Wilson’s Comments on Legal Issues for Unmarried Couples Appear in Essence Magazine

October 16, 2012 Leave a comment

Prof. Robin Fretwell Wilson

W&L Law Professor Robin Fretwell Wilson recently commented on the legal considerations relating to cohabitation by unmarried couples.  Her comments appeared in Essence Magazine and addressed what such couples need to keep in mind when it comes to children, health matters, property & assets, and inheritance issues.

To view Professor Wilson’s discussion, click here.

Professor Robin Fretwell Wilson is the Class of 1958 Law Alumni Professor of Law at Washington & Lee University School of Law.  A specialist in Family Law and Health Law, her research and teaching interests also include Insurance and Biomedical Ethics.  Professor Wilson is the editor of four volumes: Health Law and Bioethics: Cases in Context (with Sandra Johnson, Joan Krause and Richard Savor, 2009); Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Rowman & Littlefield Publishers, Inc., 2008) (with Douglas Laycock and Anthony A. Picarello);Reconceiving the Family: Critique on the American Law Institute’s Principles of the Law of Family Dissolution (Cambridge University Press, 2006); and the Handbook of Children, Culture & Violence(Sage Publications, 2006) (with Nancy Dowd & Dorothy G. Singer).  Her articles have appeared in the Cornell Law Review, theEmory Law Journal, the North Carolina Law Review, and the San Diego Law Review, as well as in numerous peer-reviewed journals.

Watch Professor Robin Wilson Speak on Religious Objections to the ACA and Emergency Contraception

October 5, 2012 Leave a comment

Prof. Robin Wilson

W&L Law Professor Robin Fretwell Wilson recently spoke at Georgetown’s Berkley Center for Religion, Peace & World Affairs as part of a conference on Contraception and Conscience: A Symposium on Religious Liberty, Women’s Health, and the HHS Rule on Provision of Birth Control Coverage for Employees.  Specifically, her talk focused on religious objections to the Affordable Care Act’s contraception mandate.  The discussion focused on the true mechanism of action of emergency contraceptives such as Plan B and Ella, how there is at times unclarity with respect to whether they act before or after fertilization, and how that complicates the debate, since studies show that many women, whether religious believers or not, have concerns about using such drugs if they work after fertilization or implantation.

Professor Wilson goes on to discuss how failing to be generous with religious exemptions has unintended consequences.  Religious employers who object to certain coverage have other more extreme remedies available to them, what Professor Wilson calls the  “nuclear option”: the complete withdrawal of health care coverage for their employees, forcing those employees onto the public health insurance exchanges.  This could be a more economically beneficial option for some employers, depending on their circumstances.

Regarding the position of individual objectors, whose situation has been almost entirely overlooked, their options are much more limited.  The individual mandate forces individual religious objectors to solve the collision between their religious consciences and the demands of civil law at great costs to themselves.   Professor Wilson argues that the Obama Administration should grant these objectors a less extreme way out and has a ready vehicle for doing so, the hardship exemption, for which regulations have yet to be released.

To view Professor Wilson’s remarks in their entirety, click here.

Categories: faculty, Wilson, Robin F.

Professor Robin Wilson to Speak on Religious Liberty at Georgetown

October 4, 2012 Leave a comment

Prof. Robin Fretwell Wilson

W&L Law Professor Robin Fretwell Wilson has been invited to  invited to comment on Gerry Bradley’s new book, Challenges to Religious Liberty in the 21st Century.  Her comments will be part of an October 24 event at the The Berkley Center for Religion, Peace, and World Affairs at Georgetown University.  This invitation comes in connection with Professor Wilson’s forthcoming article entitled The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, which will be published in the Boston College Law Review in a few weeks.

Professor Wilson’s Article, which is available for download on SSRN, considers a burning issue in society today — whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate same-sex marriages. In all these contexts, religious objectors claim a special right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and may impose significant costs on others. Legislators and other policymakers have struggled with how to advance two compelling, and at times conflicting, values — access and religious liberty. This Article examines, and responds to, a number of “sticking points” voiced by legislators about a qualified exemption for religious objectors that would permit them to step aside from facilitating same-sex marriages so long as no hardship will result. These concerns bear an uncanny resemblance to reasons why some believe the Obama administration should not yield further on the coverage mandate. Professor Wilson’s Article maintains that religious accommodations qualified by hardship to others can transform what could be a zero-sum proposition into one in which access and religious freedom can both be affirmed.

Professor Robin Wilson to Appear on Panel at Contraception and Conscience Symposium at Georgetown

September 24, 2012 Leave a comment

Contraception and Conscience:  A Symposium on Religious Liberty, Women’s Health, and the HHS Rule on Provision of Birth Control Coverage for Employees

Georgetown University Law Center


Friday, September 21, 2012
9:00 a.m.-4:00 p.m.

A conference examining the legal, theological, health, equality, and ethical issues relating to the recent Rule promulgated by the U.S. Department of Health and Human Services on “Coverage of Preventive Services Under the Patient Protection and Affordable Care Act.”
 
The symposium brings together legal, religious, and cultural scholars and practitioners for a day-long conversation about the increasingly contentious public debate surrounding the HHS Rule requiring employers to subsidize preventive health services for employees, the religious accommodations in the HHS rule, and the lawsuits filed by religious objectors challenging the rule.

Continental Breakfast—8:30-9:00

Introduction—9:00-9:10

Dean William M. Treanor, Georgetown University Law Center



Panel One – 9:10-10:45

The Legal Challenges to the HHS Contraception Rule.  What is the nature of the HHS Rule and its religious accommodations?  What is the status of the more than two dozen lawsuits challenging the HHS Rule?  How are the courts likely to resolve the statutory and constitutional issues?  How do claims of religious conscience apply to institutional employers, including for-profit employers?  What are the relevant state interests—should the Rule be viewed as simply about enabling access to preventive health care, or also about ensuring equality in the workplace?  How do these cases reflect broader trends in the development of the law of religious liberty?  How should HHS frame its promised additional religious accommodation?

Panelists: 
Martin Lederman, Georgetown University Law Center
; Louise Melling, American Civil Liberties Union; 
Melissa Rogers,Wake Forest University Divinity School, Center for Religion and Public Affairs; 
Robert Vischer, University of St. Thomas School of Law; 
Lori Windham, Becket Fund for Religious Liberty

Panel Two – 11:00-12:45

What is the Burden on Religious Exercise? Does the HHS Rule put religious employers to an untenable choice between obeying the law and honoring religious obligations, and if so, how?  Does it require individuals or entities to “cooperate with evil” in a manner that their faith forbids?  Does compliance with the law prevent them from “bearing witness” to their faith or create “scandal” by conveying endorsement of activities to which the employer morally objects?

Panelists: 
Lisa Sowle Cahill, Boston College 
Patrick Deneen, University of Notre Dame
; Cathleen Kaveny, University of Notre Dame; 
Michael Kessler, Georgetown University
; John Langan, S.J., Georgetown University; 
Robert Tuttle, George Washington University School of Law

Panel Three – 2:15-4:00

A Broader Focus.  How and why did this particular issue engender such concern and controversy?  What are the historical antecedents?  What does it tell us about how religious communities and institutions (especially those involved in provision of education and social services) can and should navigate rapidly changing norms in the public square?   What are the implications of this debate for preventive health services?  For women’s equality in the workplace and elsewhere in public life?  What are the ethical implications for physicians and other health-care providers?

Panelists: 
Gregg Bloche, Georgetown University Law Center; 
Tracy Fessenden, Arizona State University
; Eduardo Peñalver, Cornell University Law School; 
Robin West, Georgetown University Law Center
; Robin Fretwell Wilson, Washington & Lee University School of Law

Please RSVP by September 19 to rsvp2@law.georgetown.edu

The conference is co-sponsored by the Georgetown University Law Center and the Berkley Center for Religion, Peace, and World Affairs at Georgetown University.  It is made possible through a grant from the Ford Foundation.

Professor Robin Wilson and W&L Law Alumnus Anthony Kreis on Perry v. Brown

September 18, 2012 Leave a comment

Here is a recent commentary by Professor Robin Wilson and W&L Law alumnus Anthony Kreis featured on SCOTUSblog addressing same-sex marriage and Perry v. Brown:

The overlooked benefit of leaving Perry in place

 

Few decisions are so roundly criticized as the Ninth Circuit’s decision in Perry v. BrownSame-sex marriage opponents predictably called it a form of “judicial tyranny” while some marriage proponents described it as “dishonest and foolish.”  If the Supreme Court denies certiorari, it will likely satisfy neither side fully.

However, the denial of cert. would have the singular benefit, as the City of San Francisco suggests in its brief in opposition, of allowing the “significant constitutional questions” surrounding same-sex marriage to “percolate . . . [so that the] ‘perspective of time’ helps to shed more light on the weighty issues they present.” The need for percolation is particularly imperative because, as the city highlights, “this case raises issues that are currently the subject of intense legislative and popular debate.”

Not least among the issues being resolved by the state legislatures that have considered and sometimes recognized same-sex marriage legislatively is how best to balance compelling societal interests in our plural democratic society when recognizing same-sex marriage.

Through sometimes bruising legislative battles, nuanced laws recognizing same-sex marriage have been crafted in seven jurisdictions, where legislators have acknowledgedtwo compelling values – marriage equality and religious liberty.

These states have all acknowledged the impact of same-sex marriage laws on a wide swath of society that adheres to a heterosexual view of marriage. Each law provides religious liberty protections to the clergy, but then reaches beyond guarantees given by the First Amendment. A core of protections has emerged for religious organizations and individuals who cannot celebrate or facilitate any marriage when doing so would violate their religious convictions.

Although each law describes the exempt activities in slightly different terms, they generally allow objecting religious institutions and religious non-profits to step aside from providing “services, accommodations, advantages, facilities, goods, or privileges to an individual if … related to the solemnization of a marriage [or] the celebration of a marriage.”  These statutes insulate religious organizations from civil suits for refusing to celebrate marriages, while six of the seven explicitly protect such organizations from punishment at the hands of the government.

All insulate religious not-for-profits, like Catholic Charities or the Salvation Army, from the duty to celebrate or solemnize marriages that violate their religious tenets. Four extend these protections to benevolent religious organizations, like the Knights of Columbus, or to religious groups that sponsor marriage retreats or provide housing for married individuals. In New York, New Hampshire, and Washington, individual employees of these groups receive protection, too. Although many provisions were cobbled together in the pressure cooker of short legislative sessions and so are far from perfect, they nonetheless sweep far beyond the church sanctuary, providing accommodations that exceed what most scholars believe would be constitutionally demanded.

While accommodations obviously benefit religious objectors, accommodations have also become a pathway to social change for same-sex marriage advocates.  Indeed, as the legislators responsible for this legislation explain, marriage equality has shared an inseparable fate with religious liberty protections.

In New York, Maryland, and Washington, religious accommodations helped same-sex marriage advocates secure long-sought victories. Only months before the successful legislation, proposed legislation offering “faux” protections only to the clergy – who simply do not need it – failed to garner sufficient support  in all three states. After Governor Andrew Cuomo signed New York’s same-sex marriage law in the summer of 2011, The New York Times observed that the religious exemptions were:

 just a few paragraphs, but they proved to be the most microscopically examined and debated — and the most pivotal — in the battle over same-sex marriage…. Language that Republican senators inserted into the bill legalizing same-sex marriage provided more expansive protections for religious organizations and helped pull the legislation over the finish line Friday night.

Others took note, like Washington State Governor Christine Gregoire.  Working with members of the legislature, Governor Gregoire drafted her own same-sex marriage legislation containing much more expansive religious liberty provisions than introducedpreviously.  Governor Gregoire said in a telephone interview:

I looked at what New York had done.  I worked with our gay community.  I told them that that was the only way I would introduce the bill.  There were some people who wanted to compromise on [the religious liberty protections] in the future.  But I said, “No,” that this was in part a reflection of my evolution on the issue, and it wasn’t compromisable.

As in New York and Washington, in Maryland religious liberty exemptions shifted the question for some legislators from whether to embrace marriage equality to howto balance that good with religious liberty.That shift resulted in successful legislation in 2012 where it had failed in 2011.  Speaker Busch of the Maryland House of Delegates said in an interview that revamped, more expansive religious liberty protections made the difference:

We didn’t want to inhibit any religious organization from practicing their beliefs.  One of the issues was the adoption issue.  We wanted to make sure we didn’t impede on the Catholic Church for adoption services.  … I know for a fact that for two or three delegates [including religious liberty protections] was an important component in their decision to vote for it.

Even in the earliest fights over same-sex marriage, religious liberty protections proved vital. In 2009, the New Hampshire House and Senate passed a same-sex marriage bill without meaningful religious liberty protections, by razor-thin majorities. Governor John Lynch then warned legislators, “If the legislature passes [religious liberty protections], I will sign the same-sex marriage bill into law. If the legislature doesn’t pass these provisions, I will veto it.” The legislature heeded his caution and New Hampshire has same-sex marriage today, notwithstanding later efforts to repeal that legislation.

Contrast these legislative victories with the defeat in Maine. There, Maine legislators stubbornly refused to include religious liberty protections in its 2009 same-sex marriage legislation. They enacted a law that allowed religious institutions to control their religious doctrines and protected clergy and authorized celebrants from fines or other penalties for refusing to “join persons in marriage.” It provided no other protection.

Later that year, Maine voters narrowly rejected Maine’s same-sex marriage law in a people’s veto –fifty-three percent to forty-seven percent. One way to read Maine’s experience is that same-sex marriage laws without meaningful religious liberty protections makes making the case for same-sex marriage much more difficult.

Whatever else may be said of leaving the Ninth Circuit’s opinion in Perry intact, it will allow legislators in DelawareIllinoisNew JerseyRhode Island, and California to build on this burgeoning story of compromise – and that is a good thing for same-sex marriage supporters and opponents alike.

Faculty Profile: Robin Fretwell Wilson

September 5, 2012 Leave a comment
Robin Wilson

Robin Fretwell Wilson

The law cannot function properly without an intense grounding in empirical reality. Through dozens of books, scholarly articles, speeches, opinion pieces, and legislative testimonies, Professor Robin Fretwell Wilson keeps returning to this bedrock principle.

Professor Wilson’s scholarship focuses on health law and family law. She has touched on a wide variety of topics over the years, including: children at risk of sexual abuse, informed consent for medical training procedures, nano-sized cosmetics and sunscreens, and most recently, the need for broad religious exceptions to same-sex marriage laws, and the problems caused by rules allowing religious norms to govern marriage and divorce.

Her initial academic efforts were focused on the impact of incest and abuse and how to best help those at risk. In The Cradle of Abuse: Evaluating the Danger Posed by a Sexually Predatory Parent to a Victim’s Siblings, (51 Emory Law Journal 241, 2002), Professor Wilson delved deeply into statistics to show that it is better to remove the perpetrator of incest from a home rather than the victim, because the victim’s siblings have high risk of being victimized. This insight is intuitive, but without the empirical data, judges, too often, were leaving prospective victims with sexual predators.

In Nanotechnology: The Challenge of Regulating Known Unknowns, (34 Journal of Law, Medicine, & Ethics 704, 2006), Professor Wilson turned her analytical lens on the growing field of nanotechnology and cosmetics. Traditionally, the FDA has not regulated this market because the skin was believed to be an impermeable barrier to harmful substances contained in makeup and skincare products. An exploration of the science behind the new generation of cosmetics demonstrated that nanotech compounds penetrated the epidermis and lower layers of the skin, thus introducing foreign bodies directly into a user’s system. In April 2012 in response to the work of Professor Wilson and other scholars, the FDA issued draft guidance addressing these issues for the first time.

Autonomy Suspended: Using Female Patients to Teach Intimate Exams Without Their Knowledge or Consent, (8 Journal of Health Care Law & Policy 240, 2005) generated a large and still growing legislative response to an often common feature of medical students’ education. The conventional method for teaching students how to conduct a gynecological exam was to practice on women under anesthesia. These women were commonly unaware of this practice and rarely had given specific consent. The defenders of this teaching tool argue this hands-on experience is critical for new doctors, and requesting consent would cause a drastic decrease in these opportunities. Through a close look at surveys and statistics of consent given in similar contexts, Professor Wilson showed that in fact most people would give consent if asked. Today five states have enacted statutes to require informed consent from patients before performing pelvic examinations for medical or training purposes.

In Virginia, Professor Wilson, together with a team of Washington and Lee students provided legislative testimony resulting in Virginia’s law requiring specific consent before performing intimate exams for teaching purposes. Most recently Hawaii also enacted a measure after hearing testimony from both Professor Wilson and recent W&L graduate Anthony Kreis.

Professor Wilson’s latest work addresses the intersection of religion and family law, in two different contexts. As same-sex marriage is legalized in a growing number of jurisdictions, a common concern of religious objectors who believe in traditional heterosexual marriage is they will be forced to facilitate marriages in violation of their religious belief — or face severe civil penalties. While every proposed same-sex marriage bill has contained an exception for clergy, Professor Wilson, together with two groups of religious liberty scholars around the country, has argued for broader exemptions that include religiously affiliated non-profit institutions, small businesses and even government employees such as county clerks.

In her view, the dueling principles of equality and freedom of religious beliefs should not be forced to clash unnecessarily. In most cases, the data suggests that same-sex couples’ right to marry can be readily accommodated by, for example, county clerks who do not object to gay marriage—and when a willing provider is not immediately available, a carefully tailored exemption can and should preference marriage equality over religious liberty, given the state’s monopoly power over marriage. Using studies and surveys she illuminates the plight of those whose livelihoods may be lost due to shifting mores of the law and argues that exemptions qualified by hardship to same-sex couples can affirm two values worthy of respect: religious liberty and marriage equality. (Calculus of Accommodation, forthcoming, 2012)

On the other hand, Professor Wilson has also explored the problems that may occur when religious groups are allowed to apply religious precepts instead of civil family law to questions of inheritance or divorce in Western nations. These exceptions to the general law are permitted by countries out of a desire to protect the values and unique culture of the group. In practice however, this deference to religious norms about marriages, divorces, and child custody tends to disadvantage the women and children, compared to the outcomes that would result from a judgment using civil law. Professor Wilson has attempted to shed much needed empirical light on these widely divergent outcomes as a way to evaluate the wisdom of such schemes of deference

What is next for this prolific and deeply engaged scholar? “I tend to choose my topics based on what I am interested in and where the law can be improved with a push,” she says. Wherever her interests lead, a keen appreciation for the facts on the ground will continue to light the way.

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