Law Commons^™

Same-Sex Union Announcements: Precis On A Not So Picayune Matter, James M. Donovan

Law Faculty Scholarly Articles

Although some newspapers have voluntarily begun to publish same-sex union announcements, others will continue in their traditional exclusionary practices. Some of those papers can anticipate being accused in court of unlawful discrimination where the law allows that cause of action. Reflexively, those newspapers will in turn erect a defensive shield from such charges by appealing, at least in part, to the First Amendment.

This comment examines the viability of that defense. The set-piece for the discussion are the details of a complaint, described in Part I, lodged against the Times-Picayune by a lesbian couple that was denied access to its …

Same-Sex Union Announcements: Whether Newspapers Must Publish Them, And Why We Should Care, James M. Donovan

Law Faculty Scholarly Articles

The recent decision by the New York Times to publish same-sex union announcements brought to national attention the struggle of gay men and lesbians to gain access to this contested space. To date only about ten percent of newspapers allow same-sex couples to publish announcements on terms equal to heterosexual couples. Although some couples have sued to have their announcements published, these claims have been rejected as interfering with the newspaper's First Amendment protections. This article considers whether the First Amendment's Free Press and Free Speech clauses in fact allow newspapers to discriminate in this way.

The article begins with …

Choice Programs And Market-Based Separationism, Paul E. Salamanca

Law Faculty Scholarly Articles

The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or …

Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan

Law Faculty Scholarly Articles

This Article scrutinizes the constitutionality of the intent of the Defense of Marriage Act [DOMA]. According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage," where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriage requires "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals …

The Commerce Clause Post-Lopez: It's Not Dead Yet, Nicole Huberfeld

Law Faculty Scholarly Articles

This Note focuses on two important pieces of social-policy legislation that could be affected by United States v. Lopez: the Violence against Women Act (VAWA) and the Freedom of Access to Clinic Entrances Act (FACE). Conflicts exist in the lower federal courts regarding the constitutionality of both statutes, which were enacted under the Commerce Clause. This Note seeks to resolve the dispute in favor of upholding both acts. Part I surveys the major cases in the history of the Commerce Clause as they relate to social-policy legislation, up to and including Lopez. Part II discusses the conflicting cases in the …

Restoring Free Exercise Protections By Limiting Them: Preventing A Repeat Of Smith, James M. Donovan

Law Faculty Scholarly Articles

Employment Division, Department of Human Resources of Oregon v. Smith effectively removed all protections traditionally accorded the free exercise of religion. RFRA was designed to undo the effects of this decision by presumably setting back the clock of jurisprudence to the day before Smith. Even if RFRA is found to be constitutional, it will still, of itself, be ultimately ineffective since it undoes the effects of Smith without addressing the confluence of issues which made a decision like Smith likely. The clock may be set back, but without significant changes it can be expected to run forward again in much …

God Is As God Does: Law, Anthropology, And The Definition Of "Religion", James M. Donovan

Law Faculty Scholarly Articles

This Article first discusses the judicial deliberations upon the definition of religion. That discussion adopts a chronological sequence because, in legal matters, that is the one that counts.

It can be a tedious, but not particularly difficult task to summarize the legal struggle to define religion. The strategy applied to evaluate the product of that struggle is intellectual triangulation, whereby bearings from two fixed positions are used to specify that of that third. By analogy, the correct definition of "religion" can be identified by finding where the legal efforts intersect with an independent sighting of the same target. Where this …