In this second of a series of columns, Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan Brownstein continue their discussion of why the U.S. Supreme Court’s recent “Most Favored Nation” (MFN) approach to the Free Exercise Clause of First Amendment is troubling on a number of levels. Dean Amar and Professor Brownstein point out that an MFN-style approach is virtually guaranteed to cause geographical inequality because it relies upon fortuitous secular analogues.
In this first of a series of columns, Illinois Law dean Vikram David Amar and UC Davis Law professor emeritus Alan E. Brownstein discuss the U.S. Supreme Court’s apparent adoption of a “most favored nation” approach to protecting religious liberty under the Free Exercise Clause. Dean Amar and Professor Brownstein describe some of the problems with this approach and point out that the reason religious exercise receives constitutional recognition and protection is not because the Constitution assigns some heightened value to religious belief and practices over secular interests, but because we do not want the state to interfere with religious choice and the autonomy of religious individuals to associate with a religion of their choice.
Illinois Law dean Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein comment on a recent decision by the U.S. Court of Appeals by the Sixth Circuit holding that the First Amendment protects a college teacher who refused to respect student gender-pronoun preferences. Dean Amar and Professor Brownstein argue that the court may have reached the wrong outcome on the facts, and in doing so it unnecessarily decided the extent to which a key Supreme Court case should or should not apply to the public higher education setting.
Illinois Law dean Vikram David Amar and UC Davis emeritus professor Alan E. Brownstein comment on a case before the U.S. Supreme Court that raises the question whether a religiously neutral student-aid program in Montana that affords students the choice of attending religious schools violates the religion clauses or the Equal Protection Clause of the U.S. Constitution. Amar and Brownstein express no opinion as to whether the courts’ often-expressed concerns about striking down invidiously motivated laws can be effectively overcome, but they contend that jurists who reject invalidating invidiously motivated laws must explain why reasons sufficient in other contexts are not persuasive in this case.
Illinois law dean Vikram David Amar and UC Davis law professor emeritus Alan Brownstein comment on a largely unacknowledged clash between religious accommodations and exemptions on the one hand, and core free speech principles which the U.S. Supreme Court has repeatedly recognized, on the other. Amar and Brownstein describe this apparent conflict and suggest that the Court begin to resolve the conflict when it decides two cases later this term presenting the question of the scope of the “ministerial exception.”
Alan Brownstein, an emeritus law professor at UC Davis Law, comments critically on the sole opinion—a dissent—US Supreme Court nominee Brett Kavanaugh has written about the Second Amendment. Brownstein points out two critical fallacies of Judge Kavanaugh’s position with respect to Second Amendment challenges to gun regulations articulated in that dissenting opinion.
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.
Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein describe and analyze the two main legal doctrines that give rise to the action in the blockbuster movie The Post, which chronicles the efforts of journalists at the Washington Post and the New York Times to publish the Pentagon Papers. As Amar and Brownstein explain, the rule against prior restraint and the collateral bar rule animated many of the motives, moves, and countermoves that were documented in the acclaimed film.
Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein propose and analyze a law to prevent hostile listeners from “shouting down” controversial speakers that, arguably, would pass constitutional muster. Amar and Brownstein do not fully agree on which standard of review should apply to the regulation they propose, but they do agree that the mere fact that a general law is applied to conventionally expressive conduct does not always justify increasing the standard of review applied to it.
Illinois Law dean Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein point out that the US Supreme Court has no comprehensive doctrine on compelled speech under the First Amendment, especially as compared to its very nuanced doctrine on suppression of speech. Amar and Brownstein identify core elements that should comprise a comprehensive doctrine and call upon the Supreme Court to adopt similar guidelines when it decides an upcoming case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which a baker challenges a Colorado public accommodations law on First Amendment grounds, citing compelled speech. Without taking a position on how this dispute should be resolved as a matter of social policy, Amar and Brownstein argue that the doctrinal framework they describe does not support rigorous review in this case.
Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein explain the complexities behind analyzing the motive underlying legislation and executive orders. Specifically, Amar and Brownstein highlight the difficulty in courts’ using perceived motive to strike down President Trump’s executive order regarding entry to the United States.
Illinois Law dean and professor Vikram David Amar and UC Davis Law professor Alan Brownstein discuss a law the Philadelphia mayor recently signed into law that prohibits employers in that city from asking job applicants to provide their past salary data, in an attempt to reduce the wage gap between men and women. Amar and Brownstein specifically consider some of the arguments that the law violates the First Amendment.
Vikram David Amar, dean and law professor at the University of Illinois College of Law, and Alan Brownstein, professor at UC Davis School of Law, examine a court challenge brought against a recently enacted California law regulating family planning clinics. Amar and Brownstein argue that the law should survive these constitutional challenges.
UC Davis law professors Vikram David Amar and Alan Brownstein continue their discussion of state religious freedom restoration acts (RFRAs). Amar and Brownstein discuss the original purpose of state RFRAs, the pros and cons of enacting a general religious liberty statute as opposed to granting accommodations on a case-by-case basis, and the best way for states to move forward in light of these considerations.
UC Davis law professors Vikram David Amar and Alan Brownstein discuss state religious freedom restoration acts (RFRAs). In this first of a two-part series of columns, Amar and Brownstein argue that whether a state RFRA should apply in private litigation should be determined on a case-by-case basis.
UC Davis law professors Vikram David Amar and Alan E. Brownstein discuss the so-called “Sodomite Suppression Act”—a recently proposed California initiative. Amar and Brownstein argue that despite the clear illegality and immorality of the proposed initiative, many of the suggestions that the attorney who proposed it be punished or that the initiative process be altered to prevent these types of initiatives are themselves unconstitutional in some cases, and at best ill-advised in other cases.
U.C. Davis law professors Vikram David Amar and Alan Brownstein reflect on the five most significant constitutional developments of 2014.
U.C. Davis law professors Vikram David Amar and Alan E. Brownstein discuss a case the U.S. Supreme Court that will be argued in the coming months, which presents the issue how courts should define “true threats” that fall outside First Amendment protection and thus are subject to punishment.
U.C. Davis law professors Vikram David Amar and Alan Brownstein express their surprise and disappointment at the U.S. Supreme Court’s recent ruling in Town of Greece v. Galloway, upholding a practice of starting town board meetings with a prayer. Amar and Brownstein argue that the decision inadequately addresses legitimate concerns over the plaintiff challengers’ equality- and liberty-based arguments. They conclude that Justice Kennedy, who authored the opinion, must view reality quite differently from how he did when he authored the majority opinion in Lee v. Weisman and struck down state-sponsored prayers at public middle and high school graduations.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, predict that Hobby Lobby will prevail in the Hobby Lobby Supreme Court case. They add that it will be very important for the preservation of other important legal principles and public policies that the Court not rule in Hobby Lobby’s favor on too broad a basis. Thus, they comment on how the opinion should—and should not—be crafted.