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The article focuses on reevaluating the Supreme Court's free exercise jurisprudence, beginning with its 1879 decision in Reynolds v. United States up to recent developments. It argues that the Court's interpretation of Reynolds as protecting only religious belief, not action, has been incorrectly embraced since the 1960s, leading to pivotal decisions like Employment Division v. Smith in 1990. The article proposes restoring Reynolds' original understanding, which recognized protections.

Federal tax treatment matters to churches, the term the IRS uses for all types of religious congregations, including synagogues, mosques, and temples. The federal tax provisions most significant for churches and certain entities closely related to them, however, are not those that the public and commentators often assume. Exemption from income tax and the ability of donors to deduct contributions, the benefits that receive the most public attention, in fact provide surprisingly little benefit either to churches in the aggregate or to most individual churches. Their status as organizations taxexempt under section 501(c)(3) of the Internal Revenue Code, moreover, imposes a variety of burdens on them. The burdens include limitations on lobbying and the prohibition on any intervention in campaigns for public office. At the same time, churches enjoy special tax benefits not afforded to other section 501(c)(3) organizations, not even other kinds of tax-exempt religious organizations. These special benefits make church status appealing. Such benefits include exemption from filing with the IRS Form 990, an annual information return that, with the exception of the names and addresses of major donors, is also publicly available. In addition, the IRS cannot begin any audit of a church unless it complies with several procedures. Further, unlike other section 501(c)(3) organizations, churches are not required to file an application for recognition of exemption, although many choose to do so. These advantages limit oversight of churches by the IRS, the media, and the public. They create an incentive for religious organizations that share some traits commonly found in churches to seek status as a church. Two recent IRS grants of church or association of churches status have attracted sharp criticism from the media and members of Congress. At the same time, a number of developments, such as loss of membership, expansion of virtual worship, and recent Supreme Court Free Exercise jurisprudence, have created new challenges for churches and their tax treatment. In response to all these developments, this article recommends changes to the longstanding IRS approaches for defining "church" and certain church-affiliated entities. These changes would substitute a definition for church developed by courts and limit the definition for conventions or associations of churches to those of a single denomination. The definitional changes will clarify the distinction between non-church religious organizations and churches. Updating the understanding of "church" to reflect the twenty-first century realities of virtual participation and the increasing diversity of faith communities will also improve IRS oversight. This article also recommends that the GAO undertake a renewed study of campaign intervention by section 501(c)(3) organizations generally. This study will clarify whether all section 501(c)(3) organizations, including churches, are in fact violating this prohibition in ways that go beyond sporadic, minor, and usually inadvertent footfalls. In the authors' view the recommended changes would benefit churches and the public because they take into account both current realities and current concerns. In so doing, they would not only give churches welcome guidance but also increase public trust that churches are not abusing the special privileges they enjoy under federal tax law. [ABSTRACT FROM AUTHOR]

This Note argues for a change in the Supreme Court’s treatment of free exercise claims over Indigenous sacred sites. First, this Note reasons that, in Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court set an impossibly high standard for parties bringing sacred site free exercise claims against the government. This insurmountable standard, masking itself as strict scrutiny, implicitly precludes any claimant from prevailing against a government action designated for a sacred site. Further, statutes aimed at protecting religious liberty have resolved little, leaving no choice but to rework the standard. Next, this Note delves into three preexisting theories from like-minded critics of Lyng and analyzes the pros and cons of their proposed approaches to sacred site free exercise claims. Lastly, this Note sets forth a novel test that modifies the framework courts currently use in free exercise jurisprudence. Appreciating the fundamental distinctions between religious land and religious acts, this new test is uniquely tailored to address claims over sacred lands. This proposed test seeks to (1) give religious claimants a realistic opportunity to meet their initial burden in court, (2) put sacred site claims on equal footing with other free exercise claims, and (3) address the Supreme Court’s concerns with overexpanding free exercise doctrine. [ABSTRACT FROM AUTHOR]

Our constitutional law of religious liberty is a riot of principles: principles of freedom of conscience, neutrality, separation of church and state, and others. To resolve concrete disputes, we must identify what those principles are and how they could ever jointly deliver singular answers to constitutional questions. Furthermore, to identify what the principles are, we must grasp what makes them so. This Article aims to meet these three needs. It clarifies what grounds our constitutional principles, sketches what our constitutional principles of religious liberty are today, and explains how the law could ever lie decisively on the side of one litigant or rule over another when individual principles point in opposite directions. It develops and tests its claims by analyzing two questions at the law’s frontiers: whether free exercise principles support a constitutional entitlement to exemption from antidiscrimination obligations beyond what free speech principles alone mandate, and whether publicly chartered religious schools are constitutionally permitted, required, or prohibited. This is an investigation into the constitutional law of religious liberty, of course. But two of the three essential tasks it tackles—explaining how our principles are what they are and how multiple principles could ever provide determinate legal answers to contested constitutional questions— are critical across all regions of constitutional law. Accordingly, this Article examines the constitutional law of religious liberty both for its own sake and as a window into the fundamental elements and mechanics of American constitutional law generally. Its central arguments are that principles are the building blocks of our constitutional law, that they change organically as legal practices and commitments change, and that they can yield singular constitutional facts or rules despite their plurality. [ABSTRACT FROM AUTHOR]

The article examines religious challenges to U.S. state bans on gender-affirming care for transgender minors and analyzes how laws infringe upon the Free Exercise Clause rights of religious transgender youth and their parents when it comes to medical decision-making, bodily autonomy and religious beliefs and practices.

Title VII of the Civil Rights Act of 1964 requires employers to reasonably accommodate the sincerely held religious beliefs, observances, and practices of their employees unless to do so would pose an undue hardship. In 1977, in Trans World Airlines, Inc. v. Hardison, the Supreme Court held that "undue hardship" meant more than a de minimis burden. Practically, this has allowed employers to reject religious accommodations that impose more than trivial costs or burdens. Subsequent federal statutes, including the Americans with Disabilities Act, also require employers to provide accommodations absent undue hardship, but they apply a much more stringent meaning to the term--only allowing employers to reject accommodations that would require "significant difficulty or expense." Although justices, academics, political figures, and others criticized Hardison's gloss on "undue hardship" over the years, it endured for nearly a half century. However, in 2023, the Court returned to reconsider the matter in Groff v. DeJoy, ultimately clarifying that undue hardship means substantial costs or expenditures in the overall context of an employer's business. But fixing undue hardship is only the most glaring of the problems with religious accommodation in employment. Two other elements of such claims--that the belief or practice to be accommodated must be "religious" and "sincerely held"--also require comprehensive reexamination and revision. Groff's reinvention of Hardison leaves undisturbed these and other longstanding issues that impact Title VII religious accommodation litigation. For decades, employees and employers frequently presumed that the beliefs and practices employees sought to have accommodated were both religious in nature and sincerely held. This approach was mutually beneficial in Hardison's de minimis paradigm. Employees avoided uncomfortable questions about the particulars of their beliefs, including whether they were genuinely religious--and not, for example, political or sociological--or whether the individual actually believed them. Likewise, employers were quick to bypass these awkward topics and focus on the more objective subject of costs and burdens. The low threshold of the de minimis analysis allowed them to reject many non-trivial accommodations. The federal reporters are rife with decades of decisions where religious beliefs or practices were accommodated or denied, based solely (or nearly so) on courts' assessment of accommodations' burdensomeness--regardless of whether the underlying beliefs and practices were, in fact, religious or sincerely held. Groff did not address the current framework for analyzing whether a belief or practice is religious or sincerely held for purposes of Title VII. And, without the de minimis test, employers will not be able to rely upon it to the extent its low threshold allowed and encouraged. They will be more likely, and often compelled, to challenge the religiosity and sincerity of beliefs and practices--and, ultimately, accommodate more of them and, perhaps, to a greater extent under Groff. While this will aid employees' attempts to obtain accommodations, it also makes the road more uncomfortable for everyone. Plaintiffs will face increased scrutiny regarding whether proffered beliefs and practices are religious and held sincerely. In recent years, even before Groff, both employers and employees were increasingly litigating religiosity and sincerity, as demonstrated in COVID-19 vaccination litigation. In many of these cases, employers challenged the religious nature and sincerity of employees' anti-vaccination beliefs. The ugliness of some of these disputes reveals that the problems in Title VII religious accommodation cases extend beyond the meaning of undue hardship. It also portends that these problems remain even after the demise of de minimis. This article delves into the religion and sincerity tests under Title VII. It proposes changes to resolve the shortcomings of both inquiries--problems that will become even more apparent after Groff. In Part I, the article outlines the constitutional foundation for Title VII's statutory framework: the Free Exercise Clause of the First Amendment. Part II traces the development of religious accommodation under Title VII, originating with the Equal Employment Opportunity Commission's (EEOC or Commission) regulations in 1966 and 1967 before being codified by Congress in 1972, to the Supreme Court's decision in Hardison and other cases, to how the lower courts applied the elements of religious accommodation cases, including religiosity and sincerity. Finally, Part III details new frameworks for courts and practitioners evaluating religiosity and sincerity in Title VII religious accommodation cases in the new Groff world. [ABSTRACT FROM AUTHOR]

The article focuses on the multifaceted roles of public schools in students' lives, including education, supervision, discipline, and even parental responsibilities, leading to challenges in balancing legal rights and responsibilities. School administrators must navigate the constitutional rights to free speech and religion for both employees and students while upholding the Establishment Clause.

The article discusses the court case M.A. v. Rockland County Department of Health in which the Second Circuit determined that a New York county's vaccine mandate may have violated the precedent set by the Supreme Court case Employment Division v. Smith. It describes the plaintiffs' free exercise claims against the county's refusal to permit religious exemptions to a mandate prohibiting students unvaccinated against measles from entering two public schools for 21 days during an outbreak.

Congress recently passed the Respect for Marriage Act to assure that certain marriages would remain valid even if the Supreme Court were to overrule past precedent and hold that the Constitution does not protect the right to marry a partner of the same sex or of a different race. However, the Act, as written, may not offer protection for certain same-sex or interracial marriages and may open the door to the federal protection of plural marriages, congressional intent notwithstanding, because of the Court's increasingly robust free exercise jurisprudence. [ABSTRACT FROM AUTHOR]

This article examines Wesley J. Wildman's perspective on the dispute between modernity and postmodernity, particularly in relation to generality and justice. Wildman argues that postmodern critique overlooks the importance of self-criticism and the need for both critique and conceptual interpretations. However, other contributors raise concerns about Wildman's approach, including his use of religious language and Western-centric categories in comparative studies. They suggest that a more nuanced understanding of power dynamics and a postplural model of comparative inquiry may be necessary. The article explores the balance between generality and justice in philosophical and comparative work. This summary provides information about the author's academic work, including their books on Analytic Philosophy and the philosophy of religion, as well as their current project on reconceiving theory and method in the study of religions. Library patrons researching philosophy, religion, and critical theory may find this information relevant to their interests. [Extracted from the article]

The article focuses on the Satanic Temple's ongoing efforts to protect abortion rights through legal challenges against state abortion bans. It examines the evolution of free exercise jurisprudence, particularly in light of recent expansions under the new Supreme Court supermajority. It delves into The Satanic Temple's origins, belief system, and previous legal battles to defend its religious rights.

Introduction: In this manuscript, we analyze 62 US federal cases from 1990 to 2020 that implicate the issue of religious freedom and LGBT rights. Popular and scholarly commentary on the advancement of LGBT rights in the twenty-first century has speculated a rise in religious exemption litigation as a strategy to oppose such rights. Yet, we lack empirical data to confirm or reject this assumption and to understand patterns and trends within such cases. Methods: We perform bivariate analyses to examine trends with regard to how the court rules on these cases. Results: Our findings show that religious litigants are not very successful in court. Our findings also illustrate the following trends: religious litigants who are anti-LGBT experience more success in the courts compared to those who are pro-LGBT; courts are more likely to rule in favor of religious litigants if they are businesses and if cases involve wedding-related services or adoption/foster care; and cases involving the First Amendment Free Speech clause are most likely to succeed. Conclusions: These results suggest that federal courts are fairly consistent in not ruling in favor of religious-based legal claims. Yet, the cases that are successful reflect how the law upholds Christian hegemonic understandings of gender and sexuality. Policy Implications: Given that the Supreme Court has yet to provide a definitive answer to whether exemptions must be granted to religious actors opposed to non-discrimination laws related to sexual orientation and gender identity, this question will likely continue to be contested in American politics and future lawsuits. [ABSTRACT FROM AUTHOR]

For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they center women’s conscientious decisions for the first time in many decades. In law and religion circles, the predominant response has been skepticism. As claims for reproductive freedom have appeared, erstwhile supporters of expansive exemptions propose to raise the bar. They increase standards for religiosity, sow doubts about women’s sincerity, and argue for lightening the government’s burden. Constitutionally illicit stereotypes about women’s (in)capacity for moral agency, trustworthiness, and altruism seep into religious liberty arguments. These attacks on the free exercise of religious convictions about abortion implicitly—and sometimes expressly—advance religious preferentialism. They invite and expect the courts to reject pro-abortion religious claims even as they urge courts to treat anti-abortion convictions as sacrosanct. The consequence would be to exile some categories of religious people from religious liberty protections, while Christian conservatives gain systematic favor. [ABSTRACT FROM AUTHOR]

The Supreme Court shocked the world at the end of its 2021-22 term by issuing landmark decisions ending constitutional protection for abortion rights, expanding gun rights, and weakening what remained of the wall between church and state. One thread uniting these cases that captured the public's attention is the rhetoric common of originalism--a backwards-looking theory of constitutional interpretation focused on founding-era meaning and intent. This Article identifies the discriminatory intent doctrine as another powerful tool the Court is using to protect the social norms and hierarchies of a bygone era, and to build a conservative Constitution. Discriminatory intent rose to prominence during the Burger and Rehnquist Courts through the development of rules requiring intent, rigidly defining intent, and limiting the evidence relevant to prove intent. Application of these rules in equal protection claims often shielded legal structures from reproach that disadvantage women and people of color. By contrast, today's Court is revisiting and radically reinterpreting these rules in ways that favor conservative religious adherents in First Amendment claims. In Free Exercise Clause cases brought by conservative Christians challenging seemingly religiously neutral and generally applicable laws, the Court has credited allegations of discriminatory intent on thin evidentiary records. Additionally, the Court has crafted a new strict rule designed to prevent even the possibility that discriminatory intent could creep into future decision-making--even when no evidence of actual bias presently exists. Meanwhile, the Court in Establishment Clause claims has abandoned longstanding intent rules prohibiting favoritism or hostility towards religion; instead, the sole relevant question is now whether founding-era practices support the government's religious involvement. These emerging and conflicting roles for discriminatory intent in the Religion Clauses leave religious minorities and non-believers with diminished constitutional protection, while insulating the Christian right from perceived victimization by progressive forces who have sought to stem a global pandemic, promote reproductive rights, and prevent discrimination against LGBTQ individuals. [ABSTRACT FROM AUTHOR]

In 2020, the United States Supreme Court held that the Religious Freedom Restoration Act (RFRA) allows for claims for money damages against federal officials who substantially burden a person’s free exercise rights. As federal courts now grapple with these claims for damages, federal prison officials defending RFRA claims have turned to a trusty and time-honored defense: qualified immunity. In recent years, however, qualified immunity has come under increasing attack from judicial, scholarly, and popular sources, and the rationale underlying qualified immunity doctrine cannot withstand the kind of textual analysis that the Supreme Court used when announcing that the RFRA statute allowed for damages. Using the Supreme Court’s rationale, the text and doctrine of RFRA, and the longarticulated criticisms of qualified immunity, this Article argues that qualified immunity should not be an available defense to statutory claims asserted against federal prison officials. [ABSTRACT FROM AUTHOR]

In 1993, Congress nearly unanimously passed the Religious Freedom Restoration Act ("RFRA"). That bill aimed to make it easier, at least in some instances, for people to receive exemptions from laws that infringed upon their religious beliefs, even when those exemptions were not required by the First Amendment's Free Exercise Clause. Several states followed suit, passing their own RFRAs. But RFRA is uncontroversial no more. Congress and the states recently began attempting to narrow their respective RFRAs. For example, the United States House of Representatives passed a bill that would make RFRA inapplicable to certain antidiscrimination laws designed to protect LGBTQ+ individuals from discrimination. And although the Oklahoma Supreme Court has since ruled that it restricted abortions in too many cases, Oklahoma enacted a law seeking to exempt its abortion laws from the state RFRA. In short, legislative bodies are now attempting to exempt certain categories of their laws from RFRA. At the same time, the Supreme Court has pulled back on its decision in Employment Division v. Smith, thereby strengthening protections for people seeking religious exemptions pursuant to the First Amendment. In doing so, it opens a path to those seeking to challenge Congress's and states' attempts to narrow RFRA. Those challengers may argue that the narrowing of RFRA itself violates the Free Exercise Clause of the First Amendment, as interpreted in Smith. In other words, those challengers may argue that once a government creates broader protections for religious liberty than required by the First Amendment, it cannot undo those protections. This Article considers several arguments regarding whether Congress and state legislatures have the ability to limit RFRA's applicability under the Supreme Court's Free Exercise jurisprudence. This Article also argues that courts should look to the legislative history for evidence of neutrality or lack thereof (key to the Free Exercise analysis). The Article goes on to examine the legislative history of the Equality Act, a bill that limits RFRA and has passed one body of Congress, and an overturned Oklahoma statute that removed abortion law from the realm of the Oklahoma version of RFRA. This Article finds that, while some of the statements in the legislative history of the Equality Act are similar to the statements the Supreme Court deemed non-neutral in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court should hold that, while inquiry into legislative history is appropriate, it takes more to find non-neutrality in statements by legislators than in statements by adjudicators. This Article concludes that there are no statements in the legislative history of that RFRA-limiting legislation enacted by the Oklahoma legislature evidencing non-neutrality. Finally, this Article argues that regardless of the Free Exercise Clause analysis, legislative entrenchment doctrine and theory require that a limitation of RFRA be deemed unproblematic under the First Amendment. [ABSTRACT FROM AUTHOR]

The Free Exercise Clause protects the right to practice religion according to one's faith. However, government action can impermissibly chill an individual's exercise of this constitutional right. Chilling occurs when an individual self-censors out of fear that engaging in such conduct could result in some retributive response. This Note discusses chilling's inception, theories in support and against its applicability, and how it could apply moving forward. Historically, chilling is often brought up in the Free Speech context; this Note takes a different approach. The Note argues that courts should permit chilling as a valid cause of action under the Free Exercise Clause, given the Supreme Court's recent rulings regarding religion, and that chilling should be formally adopted into the Court's Free Exercise Clause jurisprudence. The Court has seemingly expanded the level of protection provided by the Free Exercise Clause over the past few terms. Allowing litigants to proceed under this theory will enable courts to ensure that bona fide religious practices are not suppressed out of fear of government action while also providing prophylactic protection for this First Amendment right. After discussing the justification as to why courts should adopt chilling moving forward, this Note examines how chilling would apply in the context of a prior appellate and Supreme Court case. The overarching theme of this Note is that courts should permit individuals to challenge government conduct that chills--and thereby implicitly discourages--the exercise of one's religious beliefs. [ABSTRACT FROM AUTHOR]

State and federal prohibitions on religiously affiliated charter schools have remained undisturbed since charter schools first emerged in the 1990s. Three recent Supreme Court cases have raised questions about that paradigm. Carson v. Makin, Espinoza v. Montana Department of Revenue, and Trinity Lutheran Church v. Comer interpret the Free Exercise Clause as prohibiting states from denying a qualified religious entity a public benefit solely because of its religious character. At first glance, it appears that the practice of granting school charters to secular non-profits while denying such charters to religiously affiliated non-profits violates this principle, rendering these longstanding statutory prohibitions unconstitutional. This Article argues against such an interpretation. Because religious organizations are exempt from the requirement that non-profit organizations file an annual information return -- the 990 -- with the IRS, religiously affiliated charters would be free from the sole oversight mechanism applicable to charter schools. The 990 is a vital tool in revealing charter school fraud and self-dealing, which has become a real problem with the emergence of "sweep contracts" -- arrangements in which charter school operators siphon off public funds to for-profit management companies for personal gain. Religious organizations operating charter schools would have unfettered discretion over public funds. This, in turn, would have the effect of privileging religion over non-religion and placing a governmental function in the hands of a religious organization, which violates the Establishment Clause. Because compliance with the Establishment Clause is a compelling governmental interest, such prohibitions are constitutional. Nonetheless, this Article suggests that expanding the 990 requirement to include religious organizations may be a less burdensome alternative to their continued enforcement. [ABSTRACT FROM AUTHOR]

The U.S. Supreme Court has entered decisively into a new fourth era of American religious freedom. In the first era, from 1776 to 1940, the Court largely left governance of religious freedom to the individual states and did little to enforce the First Amendment Religion Clauses. In the second era, from 1940 to 1990, the Court "incorporated" the First Amendment into the Fourteenth Amendment Due Process Clause and applied both a strong Free Exercise Clause and a strong Establishment Clause against federal, state, and local governments alike. In the third era, from the mid-1980s to 2010, the Court softened the review available under both Religion Clauses, allowing neutral laws of general applicability to pass First Amendment challenges even if they heavily burdened religion. But since the early 2010s, while the Court has maintained a weaker Establishment Clause, it has strengthened the Free Exercise Clause, the Free Speech Clause, and federal statutes applied to religion. The Court has held that some forms of government aid to religion and religious education are not only permissible under the Establishment Clause, but also required under the Free Exercise and Free Speech Clauses. The Court has used the Free Exercise Clause to strike down several public regulations and policies that discriminated against religion. It has strengthened both the constitutional and statutory claims of religious individuals and groups to gain exemptions from general laws that substantially burdened their conscience. The Court has used religious freedom statutes to give new protections to prisoners and has even allowed the collection of money damages from government officials who violated an individual's statutory protections of religious freedom. Featuring a new emphasis on preserving history and tradition, protecting against religious coercion, and fostering religious equality rather than just state neutrality toward religion, these cases together make clear that the nation has entered decisively into a new fourth era of American religious freedom. [ABSTRACT FROM AUTHOR]

How the Supreme Court ought to implement the Free Exercise Clause has been one of the most controversial issues in U.S. rights discourse of the past fifty years. In Fulton v. City of Philadelphia, a majority of the justices expressed dissatisfaction with the standard articulated in Employment Division v. Smith, but they could not agree on what ought to replace it. This Essay argues that focusing on whether to overrule Smith is a distraction from the sensitive task of implementing the Free Exercise Clause. This is not because Smith was "right," but because (1) the history and tradition are both indeterminate about accommodations from generally applicable laws, giving judges a measure of discretion about how to implement the Clause; (2) Smith has always been only one component of a much larger American legal regime with extraordinarily robust free exercise rights; and (3) subsequent cases have rendered the Smith doctrine so malleable that it is now arguably more protective of religious exercise than the pre-Smith regime had ever been. So the question is not whether to keep Smith but how the Court ought to implement the Clause, consistent with the original understanding, tradition, precedent, and the broader legal protections for religious exercise. This Essay argues that the Court should announce constitutionally mandated accommodations when there is reason to suspect that the political process that would ordinarily have yielded a religious accommodation failed to do so because of a political blind spot or bias. Applied delicately, with an eye toward promoting the American tradition of political, rather than judicial, accommodations, the "most-favored-right" doctrine, for all its conceptual faults, can serve that purpose, especially when coupled with robust, context-specific protections for discrete categories of religious exercise like speech, assembly, association, and ministerial employment. [ABSTRACT FROM AUTHOR]

The Supreme Court's recent decision in Kennedy v. Bremerton School District marks an important point in the Court's doctrine regarding the First Amendment's Religion Clauses. Kennedy's most noteworthy contribution to the law may have been its clear declaration that the Lemon test and its endorsement offshoots are no longer the governing legal standard. Instead, the Court will interpret the Establishment Clause "by reference to historical practices and understandings." But what, precisely, does this historical approach entail? And aside from that test, what does Kennedy have to say about doctrinal developments under the Free Exercise Clause? This Essay makes three primary observations about Kennedy. First, the Court's refined Establishment Clause test is both more nuanced and more straightforward than many scholars suggest. The Court indicated that while coercion is one important historical hallmark of an established religion, it is not the only relevant hallmark. Thus, coercion has not become the new sine qua non for all future Establishment Clause violations. This Essay suggests that, in the future, the Court will likely look to whether relevant government action falls within a range of at least six distinct historical hallmarks, and unique doctrinal tests will apply in each of these distinct historically significant contexts. Second, Kennedy clarifies the relationship between the Establishment Clause and the Free Exercise Clause, rejecting the notion that these clauses are in tension and instead embracing a vision of them as complementary and likely working together to decrease unnecessary government interference with religion. Third, the Court provided additional doctrinal clarifications protecting religious rights under the Free Exercise Clause, including categorically prohibiting official hostility toward religion, expanding an understanding of what it means for a law to fail either neutrality or general applicability, and requiring government to articulate its interest under strict scrutiny contemporaneously, rather than as a post hoc litigation tactic. Thus, this Essay suggests that, in many ways, the impact Kennedy will have on the law has likely been overstated (particularly when combined with some of the factual disputes about the case). On the other hand, some of the potential important implications of Kennedy have yet to be appreciated. [ABSTRACT FROM AUTHOR]

The article argues that an imperfect free exercise doctrine is preferable to none at all when it comes to defeating qualified immunity defenses in the U.S. It discusses the history of the free exercise and qualified immunity doctrines. It examines federal courts' handling of cases involving the conflict between free exercise and qualified immunity. It explains the negative impact of overruling the Employment Division v. Smith doctrine on free exercise claims facing immunity defenses.

Issuing the Code of Muslim Personal Laws of the Philippines was a constitutional justification for the free exercise of Religion and cultural communities. This study aimed to ascertain the relationship between the contributions of the Agama Arbitration Council as an alternative mode for conflict resolution adopted by the Shari'ah Courts in South Central Mindanao. The study utilized a descriptive correlation to the 100 respondents composed of judges, clerks of courts, counselors, staff, and asatidz in the cities of Cotabato and Kidapawan, including provinces of Maguindanao, Sultan Kudarat, and North Cotabato. The researcher-made survey questionnaire was used and validated by experts, and its reliability was tested on alpha Cronbach. The Pearson r was used to analyze the data. The results found a high positive correlation between the Agama Arbitration Council as an Alternative Mode for Conflict Resolution adopted by the Shari'ah Courts in terms of divorce (talaq), subsequent marriage, and offense against customary law and its attainment of objectives on the proper conduct of arbitration procedure and the speedy disposition of cases. Hence, the Agama Arbitration Council served as a viable process instead of litigation in the regular courts. It is recommended to incorporate them as essential in the legal system of Muslims in the Philippines. [ABSTRACT FROM AUTHOR]

The article explores the work of U.S. Supreme Court Justice Samuel Alito on religion law. Topics discussed include insight on Justice Alito's free exercise opinions, overview on Justice Alito's understanding of substantial burden analysis, and contribution of Justice Alito in Establishment Clause jurisprudence.

The article examines U.S. Supreme Court Justice Samuel Alito's principled, consistent defense of the First Amendment. Topics discussed include stance of Justice Alito about free exercise which includes clean-shaven cops and Muslim beards, rejection of Judge Alito on the Establishment Clause defense, and opposition of Judge Alito on efforts to discriminate against religious, controversial, or unpopular speech.

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The article examines the shift in Free Exercise jurisprudence in the U.S., particularly the transition from strict scrutiny in Sherbert v. Verner and Wisconsin v. Yoder to the standard set by Employment Division v. Smith. It outlines the key aspects of the earlier cases, emphasizing the need for a compelling state interest to justify infringement on religious freedom.

With several fiesh.faces on the bench, lawstlits have been testing the waters on a variety of issues m deternline the direction of this new Supreme Court. One of these issues is religion, which has been a lively issue®r centuries, and remains a contentious legal issue today. In 2021, the Court granted certiorari to Fulton v. City of Philadelphia, providing it the opportunity to clean up decades of.free exercise precedent gone awry. The Court ruled unanimously in.favor of the petitioners but fuiled to fix the recurring issue.s of the modern free exercise jurisprudence. A majority of the court declined to overturn Employment Division Department of Human Resources of Oregon v. Smith, a controversial decision from its inception that has been rebulled by Congress and widely criticized fur running atind of the Free Exercise Clause. In Fulton, the Court of fired a narrow holding and did not address the core issues at the heart of the case. Because of the Court's shortcomings, the problems of Smith remain and leave the Free Exercise Clause in a precarious state. [ABSTRACT FROM AUTHOR]

Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding-era Americans thought when they incorporated the First Amendment's Free Exercise Clause into the constitutional order that they were creating. Contrary to the views taken by many judges and scholars, the Clause's ideological background is best understood in terms of neither Enlightenment secularism nor Evangelical Christianity, but rather in terms of what the eighteenth century called natural religion. Natural religion held that human beings were capable of using reason to discern the most basic principles of religion: that the world was created by God, that people ought to worship God, and that God has given them a law of nature that establishes their basic rights and duties with regard to one another. One of the most important natural rights was that of religious freedom: because religion was rooted in reason, individuals had an inalienable right to develop their own beliefs and to live and worship in accord with them. At the same time, religious liberty was bounded by a duty to respect the inherent rights of other individuals as well as the legitimate authority of the state. In many ways, the classical eighteenth-century theory of natural religion and religious liberty was a humanistic one. At its heart was a recognition of the inherent worth of human beings. The theory held that individuals must be free to use their own minds to pursue truth, rather than having doctrines imposed on them by religious or political authorities. And it held that people with diverse beliefs were capable of living together in an open, self-governing society based on mutual acceptance and respect. These principles remain central to any adequate understanding of the Free Exercise Clause. Of course, we no longer live in the same intellectual world as the founders. In the wake of Darwinian evolutionary theory, modern cosmology, and other scientific developments, it is no longer widely accepted that reason alone can establish the existence of God or natural law. The question then arises whether the eighteenth-century view can be recast in a way that retains its virtues without depending on controversial theological notions or unjustifiably favoring religious believers over other people. In this Article, I begin to develop such a view, which I call liberal humanism. Like the classical theory, this view emphasizes the ideals of human freedom, equality, and dignity that informed the adoption of the First Amendment. But the liberal humanist approach seeks to rework the classical theory in a way that reflects our contemporary understanding of those ideals. The Article begins by summarizing the classical theory and showing how it was used by Thomas Jefferson, James Madison, and a broad coalition of groups as a justification for protecting religious freedom, first at the state and then at the federal level. Next, I discuss how the idea of natural religion can be transformed by moving away from the eighteenth century's ontological approach (an approach that held that reason could demonstrate the existence of God as well as the moral implications that flowed from it) and toward a more phenomenological approach to religion--an approach that focuses on the ways that human beings search for meaning in the world. People experience meaning in all areas of life, and they integrate these experiences into more comprehensive conceptions of the world and of their place within it. Some of these worldviews are religious ones which find ultimate meaning within a transcendent realm, while others are secular ones which find such meaning within this world. Both kinds of worldviews can be reasonable, and so both are entitled to respect. For these reasons, the Constitution should be interpreted to protect not only religious freedom but also a comparable freedom to develop and live in accord with secular beliefs. Next, I show that just as the eighteenth-century view provided an account of natural rights, the liberal humanist view can offer an account of fundamental rights within our modern constitutional order. I then discuss the light that this view can shed on two important issues in contemporary free exercise jurisprudence: whether individuals are constitutionally entitled to exemptions from laws that conflict with their conscientious beliefs, and if so, whether those exemptions properly may be granted only to those who hold religious rather than secular beliefs. The Article concludes with some brief reflections on how this approach can enable the secular and religious forces in our cultural battles to find some common ground. [ABSTRACT FROM AUTHOR]

The U.S. Constitution protects myriad, often intertwined, individual rights. Sometimes, protected fundamental rights collide, yet the Constitution lacks a methodology to resolve such clashes. Indeed, an internal tension exists even within the rights included in the First Amendment, as whenever the government acts to protect Free Exercise it advances religion. Rather than adopt a methodology that respects and considers all constitutional rights at issue in instances when constitutional rights are in collision, the Court has embraced Free Exercise Exceptionalism ("FEE"), a doctrine pursuant to which the Court elevates Free Exercise above all rights, including the prohibition expressed in the Establishment Clause. This FEE is evident in recent rulings. In the 2020 Espinoza v. Montana Department of Revenue case, the Court ruled that the no-aid provision of tuition assistance programs for parents who enroll children in religious schools discriminated based on religious status rather than religious use. The Court, using a strict scrutiny standard, changed the question from whether a state may choose to fund religious activity to whether it must. A forceful dissent decried the majority opinion for holding for the first time, that the Constitution requires the government to provide funds directly to a church. Two years later, Carson expanded Espinoza 's holding by mandating the funding of religious activities and institutions where such funding is available to nonsectarian institutions. Another forceful dissent emphasized that prohibiting a state from excluding religious schools from participating in a state tuition program made available to secular schools effects a violation of the Free Exercise Clause of the First Amendment and the breakdown of the separation of church and state. As evidenced in Carson, the consequence is hugely problematic in that the now-state-funded religious institutions, rather than be bound by general nondiscrimination laws, will be free to openly discriminate against students, staff, teachers, and parents alike. This Article proposes a new paradigm to resolve tensions and conflicts in constitutional rights that takes account of and seeks to preserve alt constitutional values. Awakening the law is a multilayered process that seeks to find justice in complex legal conflicts: it is an ongoing process that requires buy-in from all affected constituencies. The resolution of constitutional tensions requires consideration of all interests involved in a constitutional conflict. The embrace of the proposed awakened paradigm, informed by established human rights norms and the First Amendment's own history, allows for the recognition, exposure, deliberation, and resolution of the injustices effected by FEE. "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State. "The challenge for those who want to protect religious liberty in the United States, Europe and other similar places is to convince people who are not religious that religious liberty is worth special protection. [ABSTRACT FROM AUTHOR]

This Note argues that the Supreme Court has recently created a subsidized equality right in the Free Exercise Clause—by perceiving previously constitutional state action as discrimination against religion—and that this right’s logic is inconsistent with how the Court articulated funding rights in the abortion context prior to its decision in Dobbs v. Jackson Women’s Health Organization. This Note’s goal is two-fold. First, it will explain the legal principle driving the change in Free Exercise Clause doctrine: an energized equality. Although the expanding anti-discrimination principle is having transformative effects in the law of religious exemptions, this Note’s primary aim is to explore the implications of this change in the religious funding context, as much public commentary already has focused on legal developments in the former category. This Note’s second goal is to demonstrate how the Court’s articulation and application of this energized equality principle in religious funding cases reflect its political prioritization of free exercise rights. In these cases, on the basis of religious equality, the Court is willing to recognize violations of free exercise rights, whereas in nearly identical factual scenarios not explicitly involving religion, it is blind to inequality. This Note focuses on abortion funding pre-Dobbs as an example to demonstrate this logical inconsistency. [ABSTRACT FROM AUTHOR]

The article discusses the analysis of public-employee religious speech and the application of the Free Exercise and Free Speech Clauses in such cases, particularly in light of the Kennedy v. Bremerton School District decision.

There is an emerging discrepancy in free exercise and equal protection law. For decades, the Supreme Court has maintained that a law’s effects on a protected group are usually insufficient to trigger heightened scrutiny under either the Free Exercise or Equal Protection Clause. This longstanding rule has rendered it virtually impossible to challenge facially neutral laws on constitutional race, sex, and religious discrimination grounds, even where such laws inflict substantial harms on protected groups. Recent free exercise decisions, however, have abandoned this traditional barrier to enforcing constitutional equality rights. In doing so, they have subverted the usual rule that a law’s effects do not much matter, not just under the Free Exercise Clause, but also under the Equal Protection Clause. This Article argues that recent free exercise law makes a powerful case that a law’s effects both can and should play a meaningful role in triggering equal protection scrutiny. Free exercise and equal protection cases historically relied on the same theoretical and doctrinal principles to dismiss a meaningful role for effects in triggering heightened scrutiny. Recent free exercise law—by providing such a role for effects—has overcome each objection. In the process, it has created a doctrinal roadmap for overcoming the same objections in the equal protection context. It has also provided good reason to do so. Recent free exercise decisions have justified attention to effects by insisting that laws that devalue protected interests merit heightened scrutiny. In doing so, they have endorsed a broad new theory of equality that applies to, and requires attention to effects in, the equal protection context. [ABSTRACT FROM AUTHOR]

The article discusses constitutional challenges to state abortion regulations from substantive due process to the free exercise of religion, following the recent Supreme Court case of Dobbs v. Jackson Women's Health Organization. Pro-choice groups are now using federal and state Religious Freedom Restoration Acts (RFRAs) .

The article focuses on the U.S. Supreme Court's failure to provide clear guidance and analysis on freedom of religion, particularly in cases involving Native American claimants. It discusses the Court's narrow two-option framework for Free Exercise claims and its inability to comprehend or recognize the legitimacy of Native American religious practices. It also highlights the discrepancy in the Court's treatment of mainstream religious claimants versus minority religious claimants.

The article discusses the U.S. Supreme Court's recent adoption of the most-favored-nation theory of religious exemptions. It examining its implications in the context of recent cases involving free exercise and religious liberty; include the emergence of the most-favored-nation doctrine; its two-step test for evaluating religious exemptions; and the varying interpretations of this doctrine among federal courts of appeals.

This article interrogates the notion of liberal state neutrality when it comes to adjudicating religious freedom claims. Drawing on work in political theory, legal theory, and religious studies, I argue that Christianity is a central and invisible feature of liberalism. I then examine how Christian liberalism has shaped American religious freedom jurisprudence, analyzing contradictory Supreme Court decisions involving free exercise and establishment claims. On the one hand, the language of secular purpose has safeguarded several Christian expressions from Establishment Clause scrutiny. On the other hand, since the passage of the Religious Freedom Restoration Act (1993), some Christian conservative legal advocates have repositioned Christianity as a persecuted religion requiring free exercise exemptions from antidiscrimination law. That the Court has recently obliged this more narrow understanding of religious freedom demonstrates the resilience of the Christian liberal state. While the cases are drawn from the American context, I suggest that the language of Christian liberalism is a useful conceptual tool for analyzing religious freedom claims in a variety of liberal democratic contexts. [ABSTRACT FROM AUTHOR]

In Employment Division v. Smith, the Supreme Court famously held that the First Amendment Free Exercise Clause permits neutral laws of general applicability to incidentally burden religion without offering religious exemptions. Today, many people--including Justice Alito in his concurrence in Fulton v. City of Philadelphia--are calling for Smith to be replaced by a jurisprudence that applies strict scrutiny to neutral, generally applicable laws that place a substantial burden on religion. Yet, both before and after Smith, what exactly has constituted a "substantial burden" on religion has been far from clear. While some courts indicate that burdens on religion can only exist when the state threatens penal consequences or the withholding of benefits to coercively pressure religious adherents to forgo their faith, other courts indicate that burdens can also exist when the state-- without coercion or pressure--directly prevents or hinders persons from exercising their faith. While some courts have suggested that the substantiality of a burden on religion hinges on the weight of the penalties or losses that the state attaches to a claimant's exercise of religion, other courts have also measured substantiality by examining whether the religious exercise affected is central, obligatory, or mandated. Not only have existing conceptions of burden conflicted with one another, but some definitions of "substantial burden" also leave room for the state to effectively prevent religious activity without being subject to heightened scrutiny. Other definitions have failed to clarify when burdens cross the threshold of substantiality. Some definitions prompt courts to engage in ill-equipped decision-making that risks violating the Establishment Clause. And still other definitions run afoul of the Free Exercise Clause itself. In the wake of these problems, this Comment proposes a definition of "substantial burden" by starting from the operative verb of the Free Exercise Clause--to prohibit. This Comment argues that the state imposes a substantial burden on religion when it creates a de jure or de facto ban on any form of religious exercise--i.e., when the state legally forbids or effectively prevents the exercise of one's religion. Whenever neutral, generally applicable laws create such a burden, they should be subject to strict scrutiny. The definitional framework proposed by this Comment can exist alongside the existing doctrine that laws (including facially neutral ones) that discriminate against religion, and thus fall outside of Smith, should be subject to strict scrutiny. As this Comment argues, defining substantial burdens (in the context of neutral laws of general applicability) to include de jure and de facto bans on any religious exercise not only better comports with the text of the Free Exercise Clause itself, but also mitigates many of the problems raised by definitions of "substantial burden" used by courts in the past few decades. While this Comment's de jure and de facto framework does not purport to solve all of these problems, it provides a structured way for judges and legislators alike to think more rigorously about constitutionally faithful standards that might replace Smith should it be overturned. [ABSTRACT FROM AUTHOR]

The article discusses a shift in the U.S. Supreme Court's approach to religion and the state, particularly in relation to the Establishment Clause and the Free Exercise Clause. It mentions Court's decreased sympathy for Establishment Clause claims and increased openness to free exercise and free speech arguments signal a different view of the role of religion in public life and state decision-making.

In 1976, the United States Supreme Court instituted a "purposefulness" requirement to the Fourteenth Amendment's Equal Protection Clause analysis--meaning that plaintiffs would be forced to show that a law or governmental action was purposefully denied to them based on a suspect classification before they could proceed onto a traditional strict scrutiny analysis. Later, in Village of Arlington Heights v. Metropolitan Housing Development Corp., the Court outlined a seven-factor analysis that should be applied when proving a law's discriminatory purpose. The Court realized the pervasiveness of a "purposefulness" requirement and subsequently began applying it to several other constitutional doctrines, such as procedural due process, the Press Clause of the First Amendment, and the Free Exercise Clause of the First Alnendment. Recently, the Court decided Masterpiece Cakeshop, Ltd., v. Colorado Civil Rights Commission, where it determined that silence in the wake of governmental discrimination, or failure to disavow a discriminatory statement, would be added as an additional factor to consider in the traditional seven-factor test. This Article advocates that this new factor will not only be an important factor nioving forward in "purposefulness" analysis--it will be the most consequential of the eight. [ABSTRACT FROM AUTHOR]