Martha Minow, Walls or Bridges: Law's Role in Conflicts Over Religion and Equal Treatment, BYU L. Rev. (forthcoming).
Abstract: What should happen when claims for religions accommodation clash when antidiscrimination norms? Increasing conflicts of this sort are arising in the contexts or employment, education, and health care. The distinctively American reliance on litigation exacerbates conflicts of this sort by treating them as winner-take-all disputes. After examining a range of current disputes over religious exemptions and antidiscrimination laws, I will compare alternatives to winner-take-all litigation. These include proportionality review by courts, federalism – allowing decentralized and and contrasting solutions, and negotiated resolutions, which can include settlements, contracts, legislation, and mediation. Because civil wars have erupted over just these kinds of disagreements, the exploration for workable alternatives is a vital task – and the result can produce compromises or converging positions.