Analysis and Commentary Posted in 2012-05
North Dakota’s Religious Freedom Restoration Act (RFRA) Signals Religious Lobbyists’ New and Disturbing Approach to Statute-based Free Exercise Rights
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Justia columnist and Cardozo law professor Marci Hamilton comments on past and recent developments regarding Religious Freedom Restoration Acts (RFRAs) on both the state and federal levels. As she explains, a RFRA functions as follows: If a religious believer carries his burden to prove that a given law places a “substantial burden” on his right to religious exercise, then the government must prove that the law it is seeking to enforce serves a compelling interest and is the least restrictive means to accomplish that interest, or the law will not be applied. Hamilton describes a typical RFRA, chronicles the history of RFRAs, and describes a kindred federal statute, RLUIPA, the Religious Land Use and Institutionalized Persons Act. She focuses especially on a recently proposed North Dakota RFRA, which is being introduced through the initiative process. In addition, Hamilton considers how RFRAs, if enacted into law, might affect school-voucher programs.

How the Government May, and May Not, Punish People’s Thoughts and Words
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Justia columnist and Cornell law professor Sherry Colb comments on instances in which the criminal law punishes people’s thoughts and/or words instead of—or in addition to—their acts, despite the First Amendment’s protections for speech and thought. Colb analyzes the uneasy relationship between criminal and civil litigation, on one hand, and guarantees of free speech, on the other. She also covers the categories of speech that the Supreme Court has deemed unprotected by the First Amendment. Moreover, Colb notes that it is perfectly constitutional to use a person’s words as evidence of what he or she has done, or is planning. In addition, Colb describes the subtle answer to the question of whether limits on free thought can constitutionally be imposed, for thought is the essence of culpability. Finally, she concludes by describing the permissible use of evidence of thoughts in determining what may be deemed a hate crime (as well as what may be deemed a violation of discrimination law).

Why the Cyber Intelligence Sharing and Protection Act (CISPA) Is Not the Solution to U.S. Cyber Attack Fears
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Justia guest columnist Anjali Dalal, Postdoctoral Associate in Law and Google Fellow, Information Society Project at Yale Law School, comments on the Cyber Intelligence Sharing and Protection Act (CISPA). Dalal argues that while cybersecurity is a very genuine concern for the U.S., CISPA’s approach is not the way to address that concern. Dalal makes four key points to support her thesis, contending that (1) CISPA could reach common, otherwise legal Internet activities; (2) that information received from private companies under CISPA could be used for purposes other than cybersecurity; (3) that CISPA appears to effect an end-run around the Fourth Amendment; and (4) that CISPA subordinates civil-liberties protections to national security concerns. Dalal also describes the next steps that we are likely to see in the battle over CISPA.

The EEOC Rules That Transgender Discrimination Is Sex Discrimination: The Reasoning Behind That Decision
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Justia columnist and Hofstra law professor Joanna Grossman explains the EEOC ruling that discrimination against a transgender individual is sex discrimination under Title VII and related law. Grossman begins by describing the facts of the case that led to the EEOC ruling, and then goes on to take a close look at the intersection of Title VII, transgenderism, and sexual-orientation discrimination. As Grossman explains, an amendment to Title VII that would directly protect gay and transgender people from discrimination has repeatedly been introduced in Congress, but has never passed. However, gay and transgender people have been able to find some protection against discrimination under Title VII itself, via the courts, including the Supreme Court, that have interpreted Title VII to prohibit gender stereotyping and sexual harassment.

Meet our Columnists
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor of Law and Former Dean at the University of Illinois College of Law on the Urbana-Champaign campus.... more

Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of Toronto Law school. He is the James J. Freeland Eminent Scholar Chair in Taxation Emeritus at the... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional... more

Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and Employment Law and Institute of Judicial Administration at New York University School of Law. He... more

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas Boyd School of Law. Prof. Griffin, who teaches constitutional law and bioethics, is known for... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law and is currently serving as the Herman Phleger Visiting Professor at Stanford Law School. ... more

Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of Pennsylvania. She is also the founder and CEO of CHILD USA, a 501(c)(3) nonprofit academic think... more

Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar... more

Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.Professor Sarat founded both Amherst College’s Department of Law,... more

Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and Professor of Constitutional Law Emeritus at Harvard Law School, where he has taught since 1968. Born in... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University,... more