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I. INTRODUCTION 545 II. FIRST AMENDMENT CHALLENGES TO STATE PUBLIC ACCOMMODATIONS LAWS 546 A. ROBERTS V. UNITED STATES JAYCEES 547 B. HURLEY V. IRISH-AMERICAN GAY, LESBIAN, & BISEXUAL GROUP OF [...]

I. INTRODUCTION 941 II. DEVELOPMENTS IN RELIGIOUS EXEMPTIONS 942 III. THE MINISTERIAL EXCEPTION 944 A. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL V. 945 EEOC B. EEOC V. R.G. & G.R. [...]

INTRODUCTION In 2014, Charlotte Catholic High School declined to continue Lonnie Billard's employment as a substitute drama teacher after he publicly announced, via Facebook, that he and his same-sex partner [...]

In July 2022, Arizona became the first state to create a universal school-choice program by passing the Empowerment Scholarship Account Program, an education savings account (ESA) for all students outside [...]

I. Introduction. 733 II. Developments in Religious Exemptions. 734 III. The Ministerial Exception 736 A. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC 736 B. EEOC V. R.G. & G.R. [...]

The debate surrounding reproductive health rights in the United States reached a fever pitch over the summer of 2022 when the United States Supreme Court overruled Casey and Roe in a devastating, but not unexpected, opinion. Under this new ultra-religious regime, residents in the United States have limited options for pursuing reproductive healthcare, one of which may be attempting to preserve the right to abortion as a religious ritual like The Satanic Temple is arguing. This Note examines the history of Free Exercise Clause and Establishment Clause jurisprudence and demonstrates a now over-powered Free-Exercise Clause with a distinct favor for Christian values. This Note argues that shifting the legal argument surrounding abortion from a substantive due process analysis to an Establishment Clause analysis will help avoid a slippery slope of Christian enmeshment with the United States government and will preserve a more just approach to reproductive healthcare in the country., I. Introduction II. Background A. Separationism and the Establishment Clause B. Accommodationism and the Establishment Clause C. Historical Interplay of Separation and Accommodation 1. Founding Fathers' Intentions--An Inconclusive Review 2. [...]

I. Introduction 553 II. First Amendment Challenges to State Public Accommodations Laws 554 A. Roberts v. United States Jaycees 554 B. Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of [...]

It is my honor to speak at this conference, which has reflected so wonderfully on the theology and life of Saint John Paul the Great. I am by no means [...]

I do not use the term 'absurd' in this title lightly. Judge Marsha Berzon used it in a dissenting opinion to describe the impractical result that comes from repeating the [...]

Many of the Supreme Court's most tragic failures to protect constitutional rights--cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States--share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called 'Thayerism, ' after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself. The Supreme Court took a decidedly Thayerian approach to the First Amendment in the first flag salute case, Minersville School District v. Gobitis. That approach was short-lived, as Gobitis was swiftly overruled in West Virginia State Board of Education v. Barnette. Rather than deferring to political actors, Barnette treated the Constitution as placing certain rights 'beyond the reach of majorities' and establishing them as 'legal principles' that must be 'applied by the courts. ' Barnette's approach to rights--rejecting a Thayerian 'duly of deference' for First Amendment rights--has largely triumphed, even in other individual rights contexts. But a curious anomaly persists. Unlike in other areas of the law, the discredited Thayerian approach to the First Amendment from Gobitis was eventually adopted into the modern free exercise standard embraced by the Supreme Court in Employment Division v. Smith. As a result, many free exercise claims have been decided with precisely the kind of rational basis deference we long ago abandoned for other constitutional rights. This Article examines the relationship between religious liberty claims and Thayerian judicial deference. With the Supreme Court poised to reconsider Smith, this focus on deference differs from the standard scholarly and judicial approach, which tends to emphasize the debate over religious exemptions. Focusing instead on deference shows how Smith is an outlier, out of step not only with prior religious liberty cases but also with our broader approach to the enforcement of constitutional rights. Likewise, when religious liberty is viewed through the lens of deference, it becomes clear that, even without overruling Smith, the Supreme Court has been moving away from Thayerian judicial deference across a wide range of religious liberty disputes over the past decade. These deference-rejecting decisions cast the Religion Clauses as the 'the heart of our pluralistic society, ' that help 'foster a society in which people of all beliefs can live together in harmony. ' Those high goals are only attainable if religious liberty consists of judicially enforceable rights, rather than occasions for deference to the majoritarian governments that the Bill of Rights is supposed to constrain., INTRODUCTION 339 I. THAYERISM, GOBITIS, AND JUDICIAL DEFERENCE 342 A. Thayer's Theory: 'Whatever Choice Is Rational Is Constitutional.'. 343 B. Thayerism in Plessy, Buck, and Korematsu 345 C. Thayerism in [...]

In 2019, a pastor of the Church of the Flying Spaghetti Monster, a 'Pastafarian,' raised concerns about the entanglement of Alaskan local government and religion. His commentary highlighted the need to take a fresh look at Alaska's establishment clause jurisprudence. While Hunt v. Kenai Peninsula Borough addressed legislative prayer, further questions remain open about the limits of public spending on religious institutions, the need to honor Alaska's religious diversity, and the role of religion in everyday Alaskan government. While the Alaska jurisprudence has not changed much since the 1980s, the Pastafarians have demonstrated that establishment clause debates are alive and well. Therefore, Alaska may look to early constitutional debates in other states, like Massachusetts and Virginia, to evaluate its policy choices, balancing the esteemed place of religion in Alaskan society and the deep-seated belief in separation of church and state., I. INTRODUCTION The freedom of religion, in all its complexities, is unquestionably a central tenet of American conceptions of liberty and government. However, the First Amendment to the United States [...]

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment. This Article contests these vines. The fundamental rules and norms constituting the political regime--what the Article calls 'the establishment'--have now, and have always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment's civil religion--the set of transcendent, church-state propositions that support the political regime's legitimacy and authority--has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption's contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the, Supreme Court's Religion Clause, doctrine in the twentieth century and consolidated by the Court in the twenty-first. Though today's most divisive law and religion controversies often take, surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime's civil religion establishment. Today's free exercise, cases are the latest skirmishes in yesterday's disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is thai in twenty-first century America, just as ever, establishment still takes political priority to free exercise., INTRODUCTION Americans arc beset by disagreement about the First Amendment. Progressive scholars are attacking the liberal view, famously associated with Ronald Dworkin, that First Amendment rights are 'trumps' such that [...]

In the 2020 documentary 'Francesco,' Pope Francis is heard saying: Homosexual people have a right to be in the family. They are children of God. They have a right to [...]

INTRODUCTION In the middle of March 2020, as the world grappled with arguably the most serious public health crisis in recent history, economic and social activity came to a halt. [...]

ABSTRACT In American Legion v. American Humanist Ass'n, the Supreme Court upheld the constitutionality of a thirty-two-foot tall Latin cross honoring soldiers killed during World War I against an Establishment [...]

INTRODUCTION I. DEFINING HOSTILE TAKEOVER A. CLS v. Martinez B. Hostile Takeover Outside of CLS 1. Other Religion Clauses Contexts 2. Secular Voluntary Associations C. Identifying When Hostile Takeover Is [...]

ABSTRACT Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism's conceptual and normative foundations. [...]

'I rejoice in the correspondence which has taken place between you [John Adams] and your old friend Mr. [Thomas] Jefferson. I consider you and him as the North and South [...]

In 2016, three residents of the Kenai Peninsula Borough were prevented from delivering an invocation at a Borough Assembly meeting because they were neither borough chaplains nor members of a qualifying religious association. These three residents sued the borough, claiming that the Borough Assembly's speaker selection policy violated the Alaska Constitution's Establishment Clause. The superior court ruled for the plaintiffs, holding that the selection policy constituted a step towards the establishment of a state religion. Applying Supreme Court precedent, the superior court reached the correct result. However, the limited amount of federal precedent on the principles guiding speaker selection policies has led to significant variance of application in different jurisdictions. Important questions remain regarding the scope of legislative prayer doctrine in Alaska, which still need to be addressed., I. INTRODUCTION In 2016, the Kenai Peninsula Borough Assembly (the Assembly) instituted a policy partially restricting who could deliver the Assembly's invocation. (1) Three plaintiffs who were prevented from delivering [...]

As the LGBT rights movement has begun to achieve tangible successes at the national level--in particular, marriage equality and workplace protections-legislatures and courts alike have grappled with how to address those who claim their religious beliefs require them to discriminate. Since Obergefell v. Hodges, this process has gone into overdrive: Both legislative and judicial accommodations for religious dissenters have taken on novel and expansive forms. Several prominent federal court decisions have relied on Burwell v. Hobby Lobby Stores, Inc. to expand courts' conception of what constitutes a burden on religious practice and constrict the category of government action that meets the least-restrictive-means test under the Religious Freedom Restoration Act of 1993. And legislatures have considered and enacted expansive new exemptions from nondiscrimination laws with the novel feature of singling out for protection particular beliefs rather than particular actions. This new wave of religious accommodations has revived the question of what limits, if any, the First Amendment's Establishment Clause places on government's ability to protect religious exercise. So far, scholars opposed to the accommodations have emphasized the harm that religious exemptions from nondiscrimination laws impose on third parties and argued that the Establishment Clause as interpreted by the U.S. Supreme Court prohibits religious accommodations with such substantially negative effects. The only federal court opinion so far to invalidate a nondiscrimination accommodation--the Northern District of Mississippi's decision in Barber v. Bryant--adopted that reasoning in substantial part. This Note argues that focusing on the harm caused by nondiscrimination accommodations comes at the problem from the wrong angle. In general, the Establishment Clause is directed at structural problems: preventing government from interfering in the operation of religious bodies and preventing religious entities from wielding governmental power. In particular, Supreme Court holdings since Larkin v. Grendel's Den, Inc. in 1982 have consistently prohibited governments from giving parties the power to decide, by virtue of their religious beliefs, how governmental benefits are distributed. This Note argues that the new wave of nondiscrimination accommodations does just that, impermissibly giving religious actors a veto over LGBT people's and others' statutory rights to do business on equal terms. That perspective places objections to religious accommodations on a stronger, and more circumscribed, doctrinal footing, affording governments more flexibility to design constitutionally valid religious accommodations. But it also acknowledges that the conflict between religious accommodation and nondiscrimination is fundamentally a conflict between two visions of governmental power--one that ultimately must be resolved by the Constitution's command that government cannot interpose a religious veto point between a citizen and her rights., Table of Contents Introduction I. An Expansion in Three Forms of Religious Accommodation A. Free Exercise Clause Accommodations B. General Accommodations 1. EEOC v. R.G. & G.R. Harris Funeral Homes, [...]