Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, describes some of the lessons the novel coronavirus pandemic can teach us about religious liberty. Hamilton points out that COVID-19 is nondenominational and nonpartisan, yet we are already seeing some groups claim to be exempt from the public-health prohibitions on large gatherings, on the basis of their religious beliefs.
GW Law professors Ira C. Lupu and Robert W. Tuttle explain why the path the U.S. Supreme Court might be about to take in ministerial exception cases—relying on the Free Exercise Clause of the First Amendment—is dangerously misguided. Lupu and Tuttle argue that the ministerial exception rests primarily on the Establishment Clause and is strictly limited to employment decisions about who leads or controls a faith community, or who transmits a faith.
In light of a case currently on the U.S. Supreme Court’s docket for this term, UNLV Boyd School of Law professor Leslie C. Griffin explains the importance of requiring employers and others to obey generally applicable laws not targeting specific religious practices—the result of the Court’s holding in Employment Division v. Smith. Griffin argues that it is hard to imagine a peaceful United States if organizations had a constitutional or statutory right to discriminate against all types of people.
SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the U.S. Court of Appeals for the Third Circuit upholding a local law designed to address the wage gap. Grossman describes the landscape of equal pay law and the efforts some states and localities have made to address the inequity.
Cornell law professor Michael C. Dorf considers how much freedom the government has to “level down” in response to a finding of impermissible discrimination. Dorf discusses several of the U.S. Supreme Court’s precedents on leveling down and points out that these decisions are difficult to reconcile with each other and leave unresolved the questions whether and when leveling down is permissible.
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.”
UNLV Boyd School of Law professor Leslie C. Griffin comments on the oral argument the U.S. Supreme Court heard this week in Espinoza v. Montana Department of Revenue, which presents the justices with questions about the meaning of the Free Exercise and Establishment Clauses of the First Amendment. Griffin describes the questioning by the justices and predicts that the outcome in this case will demonstrate how many justices still believe in the separation of church and state.
Illinois law dean and professor Vikram David Amar discusses a recent controversy involving the termination of a Wisconsin public school security guard under a zero-tolerance policy on racial epithets. Amar explains why, if the guard had chosen to sue, he likely would have lost in court based on current precedent, and Amar uses the apparent injustice of that outcome to illustrate that public employees often don’t realize how much their speech can be proscribed and prescribed by their government employers.
Marci A. Hamilton, a professor at the University of Pennsylvania and one of the country’s leading church-state scholars, comments on President Trump's recent visit speech at the United Nations Event on Religious Freedom that promotes his administration's brand of religious liberty. Hamilton argues that Trump is leading the nation toward toxic religious liberty that our nations framers—and particularly James Madison—warned against and attempted to prevent.
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.