Walls or Bridges: What Law Can Do in Conflicts Between Religion and Equality

For BYU Law’s annual lecture honoring former BYU Law dean Bruce C. Hafen (1985-89), we welcomed Martha L. Minow, former dean of Harvard Law School (2009-2017) and 300th Anniversary University Professor at Harvard University. Professor Minow’s remarks focused on resolving tension between protecting religious liberty and upholding principles of antidiscrimination. Observing the deep divisions present in American society, Minow cited US reliance on litigation to settle differences as intensifying societal cleavage by virtue of “winner take all” lawsuit outcomes. She warned that resolving issues in such a bipolar framework is a “recipe for violence.” Instead, Minow urged lawyers to focus on compromise, offering three alternatives to our binary win/lose approach. First, expand the use of balancing tests to apply proportional remedies. Second, embrace federalism to cede more control to state governments. Third, encourage private settlements through increased use of independent mediators. Fostering any of these proposals, Minow asserted, will build bridges between protecting religious freedom and promoting civil rights and create the pluralistic, tolerant society she champions.