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A Free Speech Response To The Gay Rights/Religious Liberty Conflict, Andrew Koppelman
A Free Speech Response To The Gay Rights/Religious Liberty Conflict, Andrew Koppelman
Northwestern University Law Review
The most sensible reconciliation of the tension between religious liberty and public accommodations law, in the recent cases involving merchants with religious objections to same-sex marriage, would permit business owners to present their views to the world, but forbid them either to threaten to discriminate or to treat any individual customer worse than others. Even if such businesses have no statutory right to refuse to facilitate ceremonies they regard as immoral, they are unlikely to be asked to participate in those ceremonies. This solution may, however, be forbidden by the law of hostile environment harassment. That raises a severe free …
Free Exercise Reconceived: The Logic And Limits Of Hosanna-Tabor, Christopher C. Lund
Free Exercise Reconceived: The Logic And Limits Of Hosanna-Tabor, Christopher C. Lund
Northwestern University Law Review
Two terms ago, in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court held that the First Amendment precludes ministers from bringing employment-related claims against their churches. In some ways, Hosanna-Tabor changed little. The lower courts had all reached that conclusion already, though the Supreme Court slightly expanded the breadth of the so-called ministerial exception. More important is how Hosanna-Tabor reconceptualized things, especially in how it pushed back somewhat against the Supreme Court’s imperial decision in Employment Division v. Smith, where the Court had broadly held that the Free Exercise Clause did not entitle religious believers to exemptions …