Articles Posted in Speech and Religion

SMU Dedman School of Law professor Joanna L. Grossman comments on a law recently passed (and challenged) in Tennessee that purports to prohibit ministers ordained online from presiding over marriages in that state. Grossman explains why the Tennessee legislature passed the law and why it is being challenged, and she points out that based on the judge’s questions during the proceedings, the state may ultimately have to show at trial how the law is rationally related to its legitimate regulation of entry into marriage—regardless of whether it burdens the free exercise of religion.

Cornell law professor Sherry F. Colb comments on a decision the U.S. Supreme Court issued toward the end of the last term, in which a majority of the Court ruled that as long as police have probable cause for an arrest, it does not matter if their actual motivation for arresting someone violates the person’s First Amendment rights. Colb considers whether such pretextual, speech-based arrests are a problem, how they differ from other pretextual arrests, and how the ruling in this case resembles the law of a seemingly different area—post-conviction incarceration for convicted criminals.

Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—discusses how the U.S. Supreme Court’s majority opinion in American Legion v. American Humanist Association rejects without giving proper respect to the “endorsement test” that Justice Sandra Day O’Connor first championed as a way of maintaining separation between church and state. Hamilton argues that the endorsement test was the right test at the right time in history and that the majority in American Legion attempted to erase Justice O’Connor’s contribution to the Court’s Establishment Clause doctrine.

Cornell law professor Michael C. Dorf comments on a decision the U.S. Supreme Court issued this week invalidating a provision of the Lanham Act that prohibited registration of “immoral” and “scandalous” trademarks. Dorf provides a brief history of the legal protection for profane speech and considers the implications of a more precisely worded statute regulating profanity for trademark registration purposes.

Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, comments on the decision by the U.S. Supreme Court in American Legion v. American Humanist Association, in which the Court upheld against an Establishment Clause challenge a large cross on public land in Maryland. Hamilton argues that in reaching its conclusion, a majority of the Court ignores the purpose of the Establishment Clause—to create a bulwark against the tyranny that results from the joinder of government and religious power to rule.

UNLV Boyd School of Law professor Leslie C. Griffin discusses the decision by the U.S. Supreme Court earlier this week upholding the display of a World War I memorial cross on public land. Griffin argues that the majority erroneously and unnecessarily complicated the question asked by the Establishment Clause, effectively forgetting that the United States is not a Christian nation and that the Constitution requires the government not to prefer one religion over any other (or none at all.

UNLV Boyd School of Law professor Leslie C. Griffin comments on a case heard by the US Supreme Court this week raising questions about the Establishment Clause. Griffin summarizes some of the main points of each of the advocates in the case and argues that the Court should provide a clearer standard—a straightforward rule that one religion cannot be preferred to another.

Illinois law dean and professor Vikram David Amar comments on a challenge presently facing public (and many private) universities: how best to handle student organizations’ invitations of contentious speakers to speak on campus. Amar points out the legal limitations to some proposed solutions and argues that the law should adapt to a changing world to allow universities more options to craft data-informed and viewpoint-neutral policies.

Illinois law dean and professor Vikram David Amar explains why a recent decision by an Alabama trial court was constitutionally misguided while also illustrating some of the prominent and problematic features of modern First Amendment and federalism doctrines. Amar describes the reasoning behind the ruling, points out the flaws in the analysis, and then offers two takeaway points that we might learn from the opinion.

Marci A. Hamilton—professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania and founder, CEO, and Academic Director of CHILD USA—comments on an op-ed by New York City’s Archdiocese’s Cardinal Timothy Dolan that Hamilton characterizes as full of “misstatements and ugly implications.” Hamilton disassembles Dolan’s claims and explains why litigation—not mediation, as Dolan claims—is critically essential for the victims of child sex abuse to access the justice they deserve.

Cornell law professor Michael C. Dorf comments on Facebook’s global efforts to block hate speech and other offensive content and explains why formula-based policy necessarily makes very little sense. As Dorf explains, accurate determinations of hate speech require cultural understanding and evaluations of cases on an individual basis, but this approach also necessarily injects individual bias into those decisions. Thus, Facebook’s policy, while not ideal, may be but one of a handful of inadequate options.

Marci A. Hamilton—the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvania—describes the growing tension between the Vatican and American Bishops with respect to clergy sex abuse and considers whether a schism might be imminent. Hamilton refers to and draws upon a column she wrote in 2002, in which she argued that disagreement between American bishops and the Vatican over the correct path for dealing with clergy sex abuse was foreordained.

UNLV Boyd School of Law professor Leslie C. Griffin explains why broad support of religion is not necessarily good for religious freedom. Specifically, Griffin looks at the position of Judge Brett Kavanaugh on a number of issues from his time on the bench and before, and predicts that as a justice of the US Supreme Court, he is unlikely to ensure everyone’s constitutional rights are protected, but only those of certain groups.

Illinois law professor Lesley Wexler comments on the #ChurchToo movement, a campaign arising from the viral #MeToo movement, that seeks to raise awareness of sexual assault in the specific context of churches. Wexler describes the similarities between the #MeToo and #ChurchToo movements, as well as some key differences, and explains that any meaningful change must come largely from within these communities due to challenges in church doctrine and philosophy, particularly with evangelical churches.

Cornell law professor Michael C. Dorf explains why the FDA’s recent announcement that it intends to restrict the word “milk” on food labels may present First Amendment issues. Dorf points to the US Supreme Court’s decision last year in Matal v. Tam—which rejected the Patent and Trademark Office’s denial of a trademark to a band on the ground that the name was offensive—as evidence of the Court’s skepticism about the government making ideological judgments in the grant or denial of rights to exclusive use of a word.

Marci A. Hamilton, professor and resident senior fellow in the Program for Research on Religion at the University of Pennsylvania, comments on this week’s news from the US Supreme Court—its decisions upholding President Trump’s travel ban, striking down a California law affecting so-called crisis pregnancy centers, and the news that Justice Anthony Kennedy will be retiring. Hamilton cautions that the cases portend that, President Trump will, in effect, impose a religious test on candidates for Justice Kennedy’s replacement—a requirement expressly prohibited by the Constitution.

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein discuss two doctrinal issues raised in the Supreme Court’s majority and concurring opinions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Amar and Brownstein explain how Colorado could have reached the results it reached without disfavoring religion or religious liberty/equality at all, and they point out that the Court’s focus on the motives of the commissioners is unusual given the Court’s prior decisions on the role of invidious motives.

Marci A. Hamilton— one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the Fox Leadership Program at the University of Pennsylvania—comments on the recent decision by the US Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Hamilton explains the scope and limitations of the Court’s decision and notes the significance of its narrow holding in that case.

Cornell University law professor Sherry F. Colb examines two (real, but slightly altered) conversations in order to explore the thoughts and feelings that might affect the weight we give to principles that support our positions, while disregarding the same principles when they run contrary to our positions. Colb describes the interrelatedness of conversations that arise regarding rape, racism, and free speech, specifically in the context of college fraternities, but applicable to many other situations.

Illinois Law dean and professor Vikram David Amar relates insights on campus free speech principles that came up during a recent discussion with renowned constitutional commentators Erwin Chemerinsky and Geof Stone. Among the insights are some possible explanations for why many college students today seem opposed to allowing offensive speech on campus, the different perspectives on the proper role of university officials regarding controversial guest speakers, and the question of when the costs of providing security for controversial speaker events justifies the cancellation or termination of the event.