Law Commons^™

Schuette, Facial Neutrality And The Constitution, Mark Strasser

Mark Strasser

Equal protection jurisprudence continues to evolve. The Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action expressly disavows that it is modifying the existing equal protection jurisprudence, while nonetheless employing an approach that had previously been rejected in a few different respects. As to whether the Court has radically altered the existing equal protection jurisprudence in any of these respects sub silentio or, instead, has simply suspended the accepted constitutional rules in this particular case, this remains to be seen.

This article discusses the developing equal protection jurisprudence with respect to racial classifications, and then focuses on Schuette …

Sacred Disputes? On The Ministerial Exception And The Constitution, Mark Strasser

Mark Strasser

Federal courts have long been hearing church disputes, for example, concerning conflicting claims regarding the rightful possession and use of church property. However, there is no clear understanding concerning the contours of the constitutional limitations on the courts when one of the parties in interest is a religious organization. The conflicting jurisprudence may be clarified in the 2011-2012 term when the Court hears and decides Hosanna–Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, although there is reason to be pessimistic that this will happen. This article lays out the relevant jurisprudence as presented by the United States …

Doma’S Bankruptcy, Mark Strasser

Mark Strasser

Over the past few years, several federal courts have suggested or held that section three of the Defense of Marriage Act (DOMA) violates constitutional guarantees. The courts have differed, however, both with respect to the appropriate standard of review and with respect to the particular constitutional guarantees that the section allegedly violates. Ironically, the resolution of these debates may ultimately have less import for the constitutionality of the section at issue than for the constitutionality of DOMA’s full faith and credit section and for the constitutionality of state same-sex marriage bans. This article addresses the constitutionality of section three of …

Ignore The Man Behind The Curtain: On The Government Speech Doctrine And What It Licenses, Mark Strasser

Mark Strasser

While federal and state governments have long been communicating to various audiences in multiple ways in a variety of contexts, the United States Supreme Court has only recently invoked the government speech doctrine to protect certain state acts and policies from First Amendment challenge. The contours of the doctrine are rather fuzzy—there are no clear criteria by which to determine when the government is speaking or what, if anything, the government must be saying in order for the doctrine’s protections to be invoked. This lack of clarity has caused great confusion in the lower courts—judges seem not to know how …

Funeral Protests, Privacy, And The Constitution: What Is Next After Phelps?, Mark Strasser

Mark Strasser

In Snyder v. Phelps, the United States Supreme Court struck down a damages award against Reverend Fred Phelps Sr. and the Westboro Baptist Church for picketing a funeral. In a relatively short opinion, the Court suggested that the legal issues were straightforward—the First Amendment precludes the imposition of tort damages when the comments at issue involve matters of public concern. Yet, the Court failed to explain whether those comments that were not of public concern were somehow immunized by those that were, and also failed to explain how the holding fits into the current defamation and privacy jurisprudence. The opinion …

Mill, Holmes, Brandeis, And A True Threat To Brandenburg, Mark Strasser

Mark Strasser

John Stuart Mill argues for robust protection of free speech, and some of the essential elements of that position reflect the protections advocated by Justices Holmes and Brandeis that were eventually incorporated in Brandenburg. However, Brandenburg protections have not been analyzed in light of the developing true threats jurisprudence, most recently described and employed in Virginia v. Black. After analyzing the positions of Mill, Holmes, and Brandeis and discussing true threats jurisprudence, this article concludes that unless the Court explains how to differentiate between advocacy and true threats and, further, identifies the extent to which the Constitution protects advocacy that …

Equal Protection, Same-Sex Marriage, And Classifying On The Basis Of Sex, Mark Strasser

Mark Strasser

Over the past several years, several plaintiffs have challenged same-sex marriage bans under the respective state constitution’s equal protection guarantees. Some state supreme courts have struck down those laws on that basis, whereas others have not. This lack of uniformity is unsurprising, both because the language in one state constitution might differ from that of another and because, even where the language is the same, the jurisprudence in the respective states fleshing out the depth and breadth of the guarantees might differ. What seems more surprising is that courts cannot even agree about whether same-sex marriage bans employ a sex-based …

Advocacy, True Threats, And The First Amendment, Mark Strasser

Mark Strasser

Brandenburg v. Ohio is thought by many to represent an extremely speech-protective doctrine. Yet, much of the protection offered by Brandenburg can easily be swallowed up by the true threat doctrine, which provides the basis for a robust exception to First Amendment protections. Both the Brandenburg protections and the true threat exception are important to maintain—the great challenge for the Court is to include both within the formulation and articulation of First Amendment jurisprudence so that sufficient protection is afforded to the implicated societal and the individual interests represented by each. Regrettably, rather than provide helpful guidelines that would establish …

Same-Sex Marriage And The Right To Privacy, Mark Strasser

Mark Strasser

Over the past decade, several state appellate courts have analyzed whether their respective state constitutions protect the right to marry a same-sex partner. Those courts addressing the issue have differed both in their analyses and in their ultimate conclusions, although there have been striking similarities among those courts upholding same-sex marriage bans and among those striking them down, differences in wording among the respective state constitutional provisions notwithstanding. This article focuses on the due process analyses offered by the different courts, concluding that all of these decisions help demonstrate why the right to marry a same-sex partner should be found …

On Same-Sex Marriage And Matters Of Conscience, Mark Strasser

Mark Strasser

In our increasingly diverse society, it is ever-more important to teach tolerance of and respect for those having differing sexual orientations and religious beliefs. It thus might seem an ideal solution to include conscience clauses in legislation affording same-sex couples the right to marry, whereby individuals with religious qualms about being in any way associated with such marriages may be legally excused from doing so. Yet, by creating one exception specifically for same-sex marriages rather than a more generalized exception for those with religious qualms about facilitating or being associated with marriages contrary to belief, the state may be undermining …

Passive Observers, Passive Displays, And The Establishment Clause, Mark Strasser

Mark Strasser

A number of factors are thought relevant when deciding whether a particular state practice implicating religion violates constitutional guarantees: the age of the individuals who will be exposed to the practice, whether the practice at issue requires participation, whether the state is seen as endorsing religion, and whether the practice is coercive or proselytizing. What the current jurisprudence does not make clear, however, is whether the passive nature of a practice is an additional factor to be considered or whether, instead, describing a practice as “passive” is simply to use a conclusory term indicating that the practice does not violate …

Life After Doma, Mark Strasser

Mark Strasser

During the 2008 presidential campaign, President Obama expressed his support for the repeal of one or both provisions of the Federal Defense of Marriage Act (DOMA) and, further, each of these provisions seems constitutionally vulnerable. Given the distinct possibility that DOMA’s days are numbered, the legal ramifications of its repeal or invalidation should be explored. This essay addresses what DOMA does, and what would happen were it no longer to exist. While the fears that allegedly prompted its passage in the first place would not be realized, the repeal or invalidation of one provision of DOMA will nonetheless have important …

Interstate Marriage Recognition And The Right To Travel, Mark Strasser

Mark Strasser

Historically, states were forced decide whether to recognize a marriage, valid where celebrated, that could not have been celebrated locally. As a general rule, non-incestuous, non-polygamous marriages that were valid in the domicile at the time of celebration were treated as valid everywhere, although courts split with respect to how to apply the rule to interracial marriages. Yet, these marriage recognition practices occurred in a context where it was believed that the United States Constitution imposed no limitations on the ability of states to refuse to recognize a marriage validly celebrated elsewhere. This article examines interstate marriage recognition practices, and …

When Churches Divide: On Neutrality, Deference, And Unpredictability, Mark Strasser

Mark Strasser

Predictions that the Anglican Communion would be torn asunder have proven false, at least for now. Nonetheless, continuing disagreements about whether Bishop Gene Robinson should be a bishop and about whether same-sex unions should be recognized provide an ever-present reason for a possible break within that Communion. Were there such a break, there might well be numerous suits regarding the ownership of various properties.

Historically, churches have split off from their denominational affiliations for a whole host of reasons including disagreements over property ownership, church leadership, or member equality. When such divisions take place, the ownership of particular buildings or …

The Coercion Test: On Prayer, Offense, And Doctrinal Inculcation, Mark Strasser

Mark Strasser

Several different tests have been proposed to determine whether a state practice violates the Establishment Clause, including the Lemon test, the Endorsement test, and the Coercion test. While no test yet commands the consistent support of members of the Court, it is clear that several members of the Court favor some version of the Coercion test. Interpretation and evaluation of that test are rather difficult, however, because Court members differ greatly both about what kind of coercion triggers the relevant protections and about what the test is designed to prevent. The great disparity in views both about the reach and …

The Protection And Alienation Of Religious Minorities: On The Evolution Of The Endorsement Test, Mark Strasser

Mark Strasser

The Endorsement test is one of the tests currently used by the United States Supreme Court to determine whether a particular state practice implicating religion passes constitutional muster and has been described as the test to make that determination. While commentators have noted that the current test is difficult for lower courts to apply and is likely to result in relevantly similar cases being decided dissimilarly, too little attention has been paid to the ways that the test itself has evolved. The Court’s more recent applications of the test have conveyed a message far different from the one previously communicated, …

Religion In The Schools, Mark Strasser

Mark Strasser

This Article traces the development of modern Establishment Clause jurisprudence with respect to religion in the public schools, noting how the Court’s analyses and justifications have changed over time, protestations to the contrary notwithstanding. The Article examines how the logic of the Court’s current approach would permit practices long thought to violate Establishment Clause guarantees, concluding that the current approach is radically misconceived as a matter of both constitutional law and good public policy.

State Funding Of Devotional Studies: A Failed Jurisprudence That Has Lost Its Moorings, Mark Strasser

Mark Strasser

The Court’s attitude toward the public funding of devotional studies can best be described as ambivalent. Not long ago, devotional studies were viewed as one of the few kinds of study that the state clearly could not fund. Then, the Court did an about-face, implying that public funding of devotional studies does not violate constitutional guarantees, because that kind of study cannot be distinguished for constitutional purposes from other kinds of permissibly funded areas of study. Still more recently, the Court has changed course yet again, suggesting that states may but need not refuse to fund such studies, reverting to …

Death By A Thousand Cuts: The Illusory Safeguards Against Funding Pervasively Sectarian Institutions Of Higher Learning, Mark Strasser

Mark Strasser

Death by a Thousand Cuts: The Illusory Safeguards against Funding Pervasively Sectarian Institutions of Higher Learning

Tilton v. Richardson, Hunt v. McNair, and Roemer v. Board of Public Works are often thought to offer a coherent view of the Establishment Clause limitations on funding religiously affiliated institutions of higher learning. But the decisions themselves offer inconsistent analyses of Establishment Clause limitations and, further, were the analyses in these cases applied more generally, Establishment Clause guarantees would be even less robust than they are currently thought to be.

The difficulties for the Court in offering a coherent approach to public funding …

Repudiating Everson: On Buses, Books, And Teaching Articles Of Faith, Mark Strasser

Mark Strasser

Ever since deciding Everson v. Board of Education, the Court has wrestled with the proper way to characterize the limitations imposed on the states by the Establishment Clause. Many of the cases have involved the extent to which the state can give aid to the parents of children attending primary and secondary sectarian schools. The Court’s understanding of the limits on this kind of aid has changed markedly over the past sixty years, having first involved an analysis of the degree to which the state would be aiding religious teaching and then having changed to an analysis of whether the …

Deliberate Indifference, Professional Judgment, And The Constitution: On Liberty Interests In The Child Placement Context, Mark Strasser

Mark Strasser

Courts and commentators often argue that because adoption is created by state law, there can neither be a constitutional right to adopt nor to be adopted. They sometimes suggest that the major Supreme Court case in this area--Smith v. Organization of Foster Families For Equality and Reform (OFFER)—expressly rejects that there can be rights in the adoption context. Yet, the relevant constitutional jurisprudence is much more nuanced than these courts and commentators suggest, because the issue has not been correctly framed. The focus of discussion should be on whether there is a constitutionally protected liberty interest in the state’s not …

Preaching, Fundraising And The Constitution: On Proselytizing And The First Amendment , Mark Strasser

Mark Strasser

In a series of cases, the Court has suggested that proselytizing, whether or not including solicitation of donations, is entitled to robust constitutional protection. The Court recently affirmed that view in Watchtower Bible and Tract Society of New York, Incorporated v. Village of Stratton. Yet, the relevant jurisprudence is much less clear than either the Court or commentators seem willing to admit. When one considers the cases involving the International Society for Krishna Consciousness (ISKCON), one sees that the protections for proselytizing, especially when involving solicitation, are much weaker than might first be thought. This Article explores the proselytizing cases, …

The Often Illusory Protections Of “Biology Plus:” On The Supreme Court’S Parental Rights Jurisprudence, Mark Strasser

Mark Strasser

Over the past several decades, state supreme courts have been forced to analyze the degree to which the United States Constitution protects the parental rights of unwed fathers. Basically, some courts suggest that an unwed father will retain his parental rights as long as he does not culpably act or fail to act in a way which deprives him of his rights, while others suggest that an unwed father will acquire parental rights only if he affirmatively avails himself of the opportunity to establish a relationship with his child. The difference between these views can have important implications for the …