Law Commons^™

Zombie Religious Institutions, Elizabeth Sepper

Northwestern University Law Review

This Article uncovers and names a phenomenon of pressing importance for healthcare policy and religious liberty law: the rise of zombie religious institutions—organizations that have contractual commitments to religious identity but lack actual attachments to churches or associations of religious people. Contracts create religion—sometimes in perpetuity—for institutions that are not, or never have been, religious and for providers who do not share the institution’s religious precepts. This Article details religion’s spread across healthcare through affiliations, mergers, and—most surprisingly—sales of hospitals that continue religious practice after their connection to a church ends. These contracts require hospitals—secular and religious, public and private, …

Deference And Prisoner Accommodations Post-Holt: Moving Rluipa Toward "Strict In Theory, Strict In Fact", Barrick Bollman

Northwestern University Law Review

The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires prisons to make accommodations to regulations that substantially burden a prisoner’s religious exercise, unless the prison can show that the regulation is the least restrictive means to meeting a compelling interest. This language suggests strict scrutiny, and yet in Cutter v. Wilkinson, the Supreme Court instead intimated in dicta that courts should give prison officials “due deference” when applying this test. The 2015 case of Holt v. Hobbs presented the Court with an opportunity to clarify how much deference is due under RLUIPA. Though Holt declared that there should …

Revisiting Erisa’S Church Plan Exemption After Advocate Health Care Network V. Stapleton, Emily Morrison

Northwestern University Law Review

For much of the last forty years, ERISA’s church plan exemption has existed quietly without much fanfare. But increased litigation over the last five years has dragged the exemption into the spotlight. The litigation focuses on religiously affiliated hospital systems and whether their pension plans have been correctly classified as church plans exempt from ERISA.

This Note examines the history behind the church plan exemption, including statutory modifications made in 1980 and the IRS’s longstanding interpretation of these changes, which precipitated the dispute at issue in the current wave of litigation. While the U.S. Supreme Court’s recent decision in Advocate …

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 …

Continuing The Constitutional Dialogue: A Discussion On Justice Stevens's Establishment Clause And Free Exercise Jurisprudence, Alan Brownstein

Northwestern University Law Review

No abstract provided.

A Fixture On A Changing Court: Justice Stevens And The Establishment Clause, Erwin Chemerinsky

Northwestern University Law Review

No abstract provided.

Doe V. Elmbrook School District And The Importance Of Refocusing Establishment Clause Jurisprudence, Julie M. Karaba

Northwestern University Law Review

No abstract provided.

Ties That Bind? The Questionable Consent Justification For Hosanna-Tabor, Jessie Hill

Northwestern University Law Review

Arguments in favor of religious sovereignty often emphasize the benefits of autonomy for religious institutions while ignoring the civil rights of individuals who belong to or work for those institutions. To justify intrusions on individual civil rights, proponents of strong religious autonomy generally rely on the concept of implied consent. According to this rationale, individuals willingly give up the protection of civil rights laws when they voluntarily join religious organizations. This Essay responds to one scholar’s account of the consent rationale as undergirding the Supreme Court’s recognition of the ministerial exception: Christopher Lund’s excellent article, Free Exercise Reconceived: The Logic …