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Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Mark L. Rienzi Jan 2018

Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Mark L. Rienzi

Scholarly Articles and Other Contributions

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme will ...


Two Aspects Of Liberty, John H. Garvey Jan 2016

Two Aspects Of Liberty, John H. Garvey

Scholarly Articles and Other Contributions

Liberty in the constitutional sense is always a right against state interference (a “freedom from”). The First Amendment begins by saying that “Congress shall make no law”; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a “freedom to”): to speak, to assemble, to practice religion, to get married, etc. So “freedom from” and “freedom to” are always parts of the same idea, just as “flying from” and “flying to” are aspects of the same airplane trip. Freedom is always the right to do ...


Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark L. Rienzi Jan 2013

Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark L. Rienzi

Scholarly Articles and Other Contributions

When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine were used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech, and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex.

Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been broader ...


Unequal Treatment Of Religious Exercises Under Rfra: Explaining The Outliers In The Hhs Mandate Cases, Mark L. Rienzi Jan 2013

Unequal Treatment Of Religious Exercises Under Rfra: Explaining The Outliers In The Hhs Mandate Cases, Mark L. Rienzi

Scholarly Articles and Other Contributions

Ongoing conflict over the contraceptive mandate promulgated by the Department of Health and Human Services ("HHS") has resulted in more than two dozen lawsuits by profit-making businesses and their owners seeking protection under the Religious Freedom Restoration Act ("RFRA"). To date, the businesses and their owners are winning handily, having obtained preliminary relief in seventeen of the cases, and being denied relief in only six. Last month, in fact, a panel of the D.C. Circuit Court of Appeals took the extraordinary step of reconsidering and reversing its own prior ruling and granting a preliminary injunction to a business seeking ...


God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi Jan 2013

God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi

Scholarly Articles and Other Contributions

Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.

This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

Many ...


Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Jan 2012

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien

Scholarly Articles and Other Contributions

This Article argues that challenges made to family law structures have provoked a significant reaction from persons and religious organizations advocating a distinctive worldview based on religious and historical values. Additionally, as family law changes from being a product of a religioushistorical worldview to being a product of private-ordering, the religious liberty of worldview adherents has been challenged. The struggle is apparent in the debates during the 2012 presidential election and is evidenced in government mandates that include, among other requirements, that employersincluding religious organizations-provide insurance coverage for employees that include contraception. Although many aspects of family law have been ...


Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith Ii, Gregory P. Bailey Jan 2011

Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith Ii, Gregory P. Bailey

Scholarly Articles and Other Contributions

The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards ...


The History And Constitutionality Of Maryland’S Pregnancy Speech Regulations, Mark L. Rienzi Jan 2010

The History And Constitutionality Of Maryland’S Pregnancy Speech Regulations, Mark L. Rienzi

Scholarly Articles and Other Contributions

On December 4, 2009, Baltimore, Maryland enacted the nation's first law regulating the speech of individuals and groups who want to talk to pregnant women about whether to have an abortion. Less than two months later, nearby Montgomery County, Maryland enacted the second. These regulations only apply to speakers who want to talk about one particular subject: pregnancy. As a practical matter, the regulations only apply to speakers who oppose abortion. Counselors who work for organizations willing to provide abortions are entirely exempt. Immediately after these laws passed, abortion providers and their allies across the country began plans to ...


Smith, Stormans, And The Future Of Free Exercise: Applying The Free Exercise Clause To Targeted Laws Of General Applicability, Mark L. Rienzi Jan 2009

Smith, Stormans, And The Future Of Free Exercise: Applying The Free Exercise Clause To Targeted Laws Of General Applicability, Mark L. Rienzi

Scholarly Articles and Other Contributions

Does the Free Exercise Clause extend to situations where the legislature deliberately targets a religious practice, but does so for neutral reasons and is willing to extend the ban to people who happen to engage in the same practice for non-religious reasons? While one can imagine reasonable arguments on both sides about the constitutionality of the Sunday morning alcohol ban, it seems absurd to say that the Free Exercise Clause is not part of the equation. Yet under the First Amendment analysis presently employed by many courts, that result is entirely likely.


Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin Roger Scordato Jan 2002

Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin Roger Scordato

Scholarly Articles and Other Contributions

The tragic events of September 11th generated numerous proposals for greater security measures and increased police powers that might, if implemented, constrict the customary scope of free speech in the United States. Legitimate concerns for internal security have placed increased pressures on traditional constitutional protections for expressive activity. It is against this backdrop that this article presents a careful examination of the basic rationales for adopting constitutional level protections for free speech. The article analyzes the nature of, and many of the conflicts among, the traditional rationales for a constitutional right of free expression. It also suggests that much of ...


Emerging Trends In Religious Liberty, Robert A. Destro Jan 2001

Emerging Trends In Religious Liberty, Robert A. Destro

Scholarly Articles and Other Contributions

From a religious liberty perspective, the October 2000 term of the United States Supreme Court was relatively uneventful. The Court decided only one case raising significant religious liberty concerns, Good News Club v. Milford Central School. Good News Club adds little to the First Amendment case law already on the books, but it does provide an excellent opportunity to highlight the growing need for well-informed scholars, both American and foreign, to examine the relationships between and among clauses of the First and Fourteenth Amendments to the Constitution of the United States.


Religious Liberty And The Politics Of Judicial Review, Robert A. Destro Jan 2000

Religious Liberty And The Politics Of Judicial Review, Robert A. Destro

Scholarly Articles and Other Contributions

No abstract provided.


Political Speech—Restrictions On Ballot-Initiative Petitions, Buckley V. American Constitutional Law Foundation, Mark L. Rienzi Jan 1999

Political Speech—Restrictions On Ballot-Initiative Petitions, Buckley V. American Constitutional Law Foundation, Mark L. Rienzi

Scholarly Articles and Other Contributions

The Supreme Court has repeatedly noted that ballot and election regulations raise difficult questions about the interplay between the First Amendment's heightened protection for political speech, and states' need to regulate ballots and elections to ensure fair and orderly democracy. When making the delicate judgments between protecting political speech and allowing states to regulate elections, the Court has traditionally stated precisely which test it was employing to evaluate individual restrictions. Last Term, in Buckley v. American Constitutional Law Foundation, the Court invalidated several of Colorado's restrictions on the signature-gathering process for ballot initiative petitions. In so doing, the ...


The Architecture Of The Establishment Clause, John H. Garvey Jan 1997

The Architecture Of The Establishment Clause, John H. Garvey

Scholarly Articles and Other Contributions

No abstract provided.


The Real Reason For Religious Freedom, John H. Garvey Jan 1997

The Real Reason For Religious Freedom, John H. Garvey

Scholarly Articles and Other Contributions

No abstract provided.


All Things Being Equal, John H. Garvey Jan 1996

All Things Being Equal, John H. Garvey

Scholarly Articles and Other Contributions

I will discuss the effect that the proposed Religious Equality Amendment might have on existing First Amendment law.


An Anti-Liberal Argument For Religious Freedom, John H. Garvey Jan 1996

An Anti-Liberal Argument For Religious Freedom, John H. Garvey

Scholarly Articles and Other Contributions

I want to consider why we protect freedom of religion as a constitutional right. The commonsense answer, which I think hits close to the truth, is that we protect it because religion is important. I will try to show that this answer is better than the alternatives which liberal theory offers.


Developments In Liability Theories And Defenses, Robert A. Destro Jan 1996

Developments In Liability Theories And Defenses, Robert A. Destro

Scholarly Articles and Other Contributions

Litigators with experience in the field of religious liberty believe that courts do not seem to take religious liberty claims and defenses very seriously; however, it is difficult to know why. To be sure, the anecdotal evidence is certainly there, not only in the reported cases, but also in the actual courtroom experiences of those who attempt to raise religious liberty claims and defenses. In one Texas tort case, a trial court judge stated that she would not permit the Church "to hide behind the first amendment;" in a Maryland case a number of years ago, I was asked by ...


The Structure Of The Religious Liberty Guarantee, Robert A. Destro Jan 1995

The Structure Of The Religious Liberty Guarantee, Robert A. Destro

Scholarly Articles and Other Contributions

No abstract provided.


Cover Your Ears, John H. Garvey Jan 1993

Cover Your Ears, John H. Garvey

Scholarly Articles and Other Contributions

Lee v. Weisman holds that public schools cannot offer prayers at graduation ceremonies. It has another curious implication: according to George Dent, it also means that public schools must excuse religious dissenters from offensive parts of the currculum. I think this is an astute observation. The issues are not alike doctrinally Weisman is an Establishment Clause case; the curriculum cases are Free Exercise cases. But the schools cause similar harms in both cases; they do so mostly by exposing children to unwelcome ideas. Why is this so upsetting? Why object to hearing people talk? I want to make three observations ...


Black And White Images, John H. Garvey Jan 1993

Black And White Images, John H. Garvey

Scholarly Articles and Other Contributions

In 1989 the National Endowment for the Arts (the "NEA") caused a stir by funding two exhibitions of photographs by Robert Mapplethorpe and Andres Serrano. The pictures were vulgar and irreverent, and many people thought that the NEA should not sponsor them with tax money. Whether the NEA can actually control the content of speech that it pays for is a hard First Amendment question. I want to look at how Congress has tried to answer it. Congress seriously considered two solutions, and adopted one of them in 1990. Both rely on analogies drawn from the area of race relations ...


‘Hate Speech’ On The College Campus: Freedom Of Speech And Equality At The Crossroads, William A. Kaplin Jan 1992

‘Hate Speech’ On The College Campus: Freedom Of Speech And Equality At The Crossroads, William A. Kaplin

Scholarly Articles and Other Contributions

This article focuses on the First Amendment implications of the hate speech problem, comparing the free speech values that may be endangered by attempts to regulate hate speech with the equality values that may be endangered if hate speech is left unchecked. I will also concentrate on processes that universities may devise to resolve these crucial value questions. My goal is to add order and balance to the differing points of view concerning hate speech, and to bring a measure of practicality and concreteness to what has often been a rather theoretical and abstract debate. In short, my focus will ...


A Proposed Process For Managing The First Amendment Aspects Of Campus Hate Speech, William A. Kaplin Jan 1992

A Proposed Process For Managing The First Amendment Aspects Of Campus Hate Speech, William A. Kaplin

Scholarly Articles and Other Contributions

For public institutions, attempts to regulate hate speech raise substantial legal issues under the First Amendment of the U.S. Constitution. For private institutions, which may not be bound by the First Amendment, attempts to regulate hate speech raise sensitive policy questions concerning the role of free expression on campus. Numerous articles (many of which are listed in the references below) have undertaken substantive analysis of these constitutional issues and policy questions. In contrast, this article explores a preliminary and overarching concern: the process by which a college or university addresses the problem of hate speech, and in particular the ...


Churches And The Free Exercise Of Religion, John H. Garvey Jan 1990

Churches And The Free Exercise Of Religion, John H. Garvey

Scholarly Articles and Other Contributions

The first amendment says that "Congress shall make no law . . . prohibiting the free exercise" of religion. This rule is most often used to protect individuals (religious speakers, pacifists, people claiming public benefits). This is hardly surprising. We naturally think that free exercise is an individual right, as we think that religion is a personal and private affair. I want to dispute (more modestly, to qualify) that view. I will argue that we should (sometimes) see the freedom of religion as a group right, which can conflict with, and take precedence over, individual rights.


Distinction Without A Difference: A Reappraisal Of The Doctrine Of Prior Restraint, Marin Roger Scordato Jan 1989

Distinction Without A Difference: A Reappraisal Of The Doctrine Of Prior Restraint, Marin Roger Scordato

Scholarly Articles and Other Contributions

For nearly 60 years, the doctrine of prior restraint has held a central position in first amendment jurisprudence. A law that acts as a prior restraint on speech comes under such searching judicial scrutiny that it almost always is invalidated. Professor Marin Scordato makes a frontal attack on the existing prior restraint doctrine in this Article. ie first maintains that the traditional definition of prior restraint defies the common-sense meaning of the term. Then he examines the policy justifications for identifying prior restraints by their asserted tendency to produce constitutionally undesirable results compared with their definitional opposites, subsequent sanctions. He ...


Nudity, Obscenity And Pornography: The Streetcars Named Lust And Desire, George P. Smith Ii Jan 1988

Nudity, Obscenity And Pornography: The Streetcars Named Lust And Desire, George P. Smith Ii

Scholarly Articles and Other Contributions

No abstract provided.


Free Exercise And The Values Of Religious Liberty, John H. Garvey Jan 1986

Free Exercise And The Values Of Religious Liberty, John H. Garvey

Scholarly Articles and Other Contributions

One thing that has always bothered me about free exercise jurisprudence is that it rests on values we have seldom tried to state, much less justify. In a way this is not surprising. We have only recently abandoned the assumption, which may never have been true, that Americans share a common understanding of language about God and transcendent values. That understanding made it unnecessary to define for nonspeakers a meaning that even believers have trouble putting into words. But today we are probably not "a religious people whose institutions presuppose a Supreme Being-at least not if "religious" is supposed to ...


Note: Exit Polls And The First Amendment, Geoffrey R. Watson Jan 1985

Note: Exit Polls And The First Amendment, Geoffrey R. Watson

Scholarly Articles and Other Contributions

This Note examines the constitutionality and the wisdom of these state laws and congressional proposals. Part I traces the history of exit polls and election-night projections. Part II argues that restrictions on the collection or dissemination of exit poll data, whether designed to prevent disruption at the voting area or to protect the integrity of the vote, violate the first amendment. Part III concludes that a uniform poll-closing time coupled with voluntary network restraint would both allay legitimate concerns about election-night predictions and comport with first amendment values.


Comment: Zauderer V. Office Of Disciplinary Counsel, Geoffrey R. Watson Jan 1985

Comment: Zauderer V. Office Of Disciplinary Counsel, Geoffrey R. Watson

Scholarly Articles and Other Contributions

No abstract provided.


Children And The First Amendment, John H. Garvey Jan 1979

Children And The First Amendment, John H. Garvey

Scholarly Articles and Other Contributions

If children possess moral and political rights against the state, theories about these rights have scarcely progressed beyond first principles. The state must retain power to regulate education and some aspects of family life. Parents sometimes have a final say concerning what a child may do and experience. Professor Garvey offers an account of the way in which these and other realities shape the child's rights of free expression under the first amendment.