Netta Barak Corren (Harvard Law School; Hebrew University of Jerusalem) has posted The War Within on SSRN. Here is the abstract:
In recent years, culture wars have been reintroduced into law and politics. From struggles over women’s reproductive rights to the treatment of LGBT persons in employment and business, religion and equality appear to be in collision. Despite the intuitive appeal of describing the conflict through the prism of “culture wars,” this paradigm can prove misleading. Religious groups are diverse and dynamic and they struggle with the challenge of equality from within, not only from outside forces.
Inattentive to this reality, current debates on religion versus equality fail to acknowledge some of the major factors that determine whether the religious response to equality challenges will be oppositional or tolerant.
Drawing on qualitative and experimental evidence from the United States and Israel, this paper identifies a systemic practice of “social impact regulation,” whereby religious decision-makers selectively apply and enforce religious norms based on the perceived social impact of sexual nonconformity. Social impact factors shape real-time decision-making in legal contexts and are highly consequential, significantly influencing decisions as to whether to dismiss sexual nonconformists or to object to unfavorable judicial decisions. This Article explores the implications of social impact regulation for the evolution and resolution of conflicts between law and religion.