Articles Posted in Constitutional Law

UNLV Boyd School of Law professor Leslie C. Griffin describes the ministerial exception—a First Amendment rule created by courts that bars the application of anti-discrimination laws to religious organizations’ employment relationships with its “ministers”—and enumerates some of the cases in which the exception led to dismissal of a lawsuit. Griffin argues that we as a society cannot achieve full justice as long as courts interpret religious freedom to include a ministerial exception that condones racial discrimination lawsuits.

Cornell law professor Sherry F. Colb describes how the U.S. Supreme Court purported to allow the state of Kansas to substitute one insanity defense for another, but in fact approved its abolishment of the insanity defense altogether. Colb explains the difference between the insanity defense—an affirmative defense to the commission of a crime—and facts that negate mens rea—the mental element of a crime. Colb also notes how in dissent, Justice Stephen Breyer made a case for veganism, albeit probably inadvertently.

In this first of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector” cases, Illinois law dean and professor Vikram David Amar expresses disappointment that the majority opinion—authored by Justice Elena Kagan—and concurring opinion—by Justice Clarence Thomas—are not as well reasoned or careful as they could be. Amar points out some of the ways in which the opinions fall short, noting some of the arguments that merited more discussion, or at least more thorough consideration.

UNLV Boyd School of Law professor Leslie C. Griffin comments on three recent decisions by the U.S. Supreme Court in which religion has won, at the expense of women. Griffin explains why the Court’s decisions in Our Lady of Guadalupe School v. Morrissey-Berru (and the consolidated case, St. James School v. Biel), Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (and the consolidated case, Trump v. Pennsylvania), and Espinoza v. Montana Department of Revenue together amount to sanctioned and government-funded discrimination masquerading as religious freedom.

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on President Trump’s Fourth of July speeches, in which the President described a nation at war with itself and its legacy. Sarat points out the irony of Trump accusing others of lying about or attempting to erase the past, and he notes that Trump’s own distortion of historical facts is a tactic that authoritarian, fascist, and totalitarian regimes have used in the past to legitimize the regime or erase inconvenient truths.

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on a religious liberty issue presented by the upcoming execution of Wesley Ira Purkey. Sarat explains that Purkey’s spiritual advisor is unable to attend Purkey’s execution due to the COVID-19 pandemic, and he points out that for the federal government to carry out the execution anyway would belie its purported commitment to religious liberty.

Illinois law dean and professor Vikram David Amar offers three observations on a measure recently approved by the California legislature that would, if approved by the voters, repeal Proposition 209, the voter initiative that has prohibited affirmative action by the state and its subdivisions since its passage in 1996. Amar praises the California legislature for seeking to repeal Prop 209 and for seeking to do so using the proper procedures, and he suggests that if Prop 209 is repealed, legal rationales for the use of race should be based not only on the value of diversity (as they have been for some time now), but also on the need to remedy past wrongs against Black Americans.

Cornell law professor Sherry F. Colb considers the policy question of whether, since the Constitution requires jury unanimity to convict a defendant of a serious crime, states should require a unanimous verdict to acquit a defendant, as well. Colb describes the reasons behind jury unanimity convictions and assesses whether they apply similarly to acquittals.

Touro law professor Rodger D. Citron analyzes the oral arguments in the cases before the U.S. Supreme Court regarding demands for President Trump’s financial records. Citron explains why it seems likely that the Court will reverse the lower courts’ decisions refusing to quash the House committee subpoenas and offers a number of observations based on his review of the transcript.

NYU law professor Samuel Estreicher and rising 3L Daniel Folsom comment on the U.S. Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund, in which the Court interpreted a provision of the Clean Water. Estreicher and Folsom argue that the case presented an opportunity to clarify the murky question of when the Chevron doctrine applies, yet the Court avoided answering that question.

Illinois Law dean and professor Vikram David Amar comments on the recent dispute over the U.S. Attorney for the Southern District of New York and explains what President Trump and Attorney General Barr could have done to avoid the problem altogether. Amar describes a process that, if followed, could have allowed the administration to appoint their first-choice candidate without causing the controversy in which it now finds itself.

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on Attorney General William Barr’s recent order to resume federal executions and the political implications of that order. Sarat briefly describes the history of the federal death penalty in the United States and explains that, regardless of what state we live in, when the federal government puts someone to death, it does so in all of our names.

SMU Dedman School of Law professor Joanna L. Grossman and University of Pittsburgh law professor Deborah L. Brake comment on the U.S. Supreme Court’s recent ruling that Title VII prohibits discrimination on the basis of sexual orientation and gender identity. Grossman and Brake discuss the history of court decisions interpreting the meaning of “because of sex” under Title VII and describe the Supreme Court’s reasoning in Bostock v. Clayton County.

Cornell law professor Michael C. Dorf discusses a claim by Missouri Senator Josh Hawley that the purpose of originalism and textualism is to provide a mechanism for obtaining results that religious conservatives favor on ideological grounds. In light of two recent Supreme Court decisions that disappointed conservatives, Dorf considers how conservatives might respond to these decisions and expresses hope that they might rethink their support for Trump. Dorf observes that while Supreme Court rulings do sometimes follow election returns, the reverse is also sometimes true, and we can’t yet know which direction this year will flow.

Igor De Lazari, a Brazilian legal scholar, and Antonio Sepulveda, Professor of Law at the Getulio Vargas Foundation (FGV) and at the Fluminense Federal University, offer a comparative analysis of warrantless searches in Brazil and the United States. De Lazari and Sepulveda call for guidance from each country’s high court to help clarify the law and facilitate uniform and predictable rulings on the constitutionality of certain warrantless searches.

University of Pennsylvania professor Marci A. Hamilton applauds the U.S. Supreme Court’s decision in Bostock v. Clayton County, holding that gay and transgender employees are protected under Title VII, but she cautions that that Bostock’s contribution to LGBTQ rights is curtailed by the Religious Freedom Restoration Act (RFRA). Hamilton calls for repeal, or at least significant reform, of RFRA to protect the civil rights of LGBTQ individuals restore the values of mutual dignity and respect enshrined in law.

UNLV Boyd School of Law professor Leslie C. Griffin comments on the U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that under Title VII, an employer cannot fire an employee simply for being gay or transgender. Griffin considers what might happen next term when the Court takes up the question of whether religious organizations are exempt from these generally applicable laws and thus may discriminate against LGBTQ employees (and others).

Cornell law professor Sherry F. Colb proposes revising the third-party doctrine in a way that reconciles two of the U.S. Supreme Court’s decisions that some critics view as conflicting. Colb suggests that, contrary to what most critics argue and what she herself has long assumed, the prior decision, Katz v. United States rather than the later one, United States v. White, is the anomaly.

NYU law professor Samuel Estreicher and recent graduate Joseph A. Scopelitis argue that the EEOC should maintain a log of “alleged offenders” to help prevent the next Harvey Weinstein. Estreicher and Scopelitis explain why such a log would effectively balance the interests of the alleged offender and victim, the employer, and the public.

Cornell law professor Michael C. Dorf discusses the proposal that eliminating or substantially reducing the qualified immunity currently enjoyed by police officers would address racism and police brutality. Although the idea has lately garnered some bipartisan support and could potentially have some benefit, Dorf describes two reasons to be skeptical of the suggestion. He concludes that for all of its flaws, qualified immunity may actually facilitate the progressive development of constitutional rights.