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Harvard Journal of Law & Gender

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This Article explores an expanding phenomenon that it calls Faith-Based Emergency Powers. In the twenty-first century, conservatives have come to rely heavily on Faith-Based Emergency Powers as a leading legal strategy in the Culture Wars. This strategy involves carving faith-based exceptions to rights of women and LGBT people. The concept of Faith-Based Emergency Powers is developed in this Article through an analogy to the “War on Terror.” In the War on Terror, conservatives typically have taken the position that judges, legislators, and the public must defer to the President and the executive branch in matters involving national security. This argument has three components: (1) rhetoric of war, emergency or catastrophe; (2) legal argument for suspension of existing human rights; and (3) designation of decision-makers who are allegedly more qualified than courts or the legislature to address the emergency.

The principal claim of this Article is that in contemporary Culture Wars in the United States, conservative politicians, lawmakers, and litigants have imported the three-step emergency powers rationale to “defend” religious liberties. In recent years, there has been a growth in claims for religious exemptions in many legal contexts, including free exercise challenges to marriage-equality and the Affordable Care Act (ACA). The desired consequence of the conservative turn to emergency powers rationales in the Culture Wars is to suspend or diminish rights of women and sexual minorities. As such, this Article argues that the Supreme Court and other lawmakers facing similar dilemmas today ought to defend the rule of law by rejecting Faith-Based Emergency Powers.



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