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Full-Text Articles in Law
Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber
Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber
Notre Dame Law Review
The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?
The "Nonministerial" Exception, Athanasius G. Sirilla
The "Nonministerial" Exception, Athanasius G. Sirilla
Notre Dame Law Review
In 2014, Charlotte Catholic High School declined to continue Lonnie Billard’s employment as a substitute drama teacher after he publicly announced, via Facebook, that he and his same-sex partner were getting civilly married. Billard sued the school in the Western District of North Carolina for unlawful employment discrimination under Title VII of the Civil Rights Act due to his sexual orientation. The district court granted summary judgment in favor of Billard. The court first held that the high school’s actions could constitute unlawful sex discrimination in light of the Supreme Court’s ruling in Bostock v. Clayton County. The district court …
The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino
The First Amendment And Military Justice: Threats To Political Neutrality, Joshua Paldino
Notre Dame Law Review Reflection
This backdrop illustrates a throughline that runs throughout, and creates tension within, the Military Justice system. On the one hand, there is a need to protect the individual rights of servicemembers. This concern is driven (in part) by the intuition reflected in Judge O’Connor’s opening sentences—those sworn to protect constitutional liberties should surely enjoy the benefits of that which they protect. On the other, individual rights protections must yield, to some degree, to the needs of military life and military exigency. Of course, "to some degree" is the space in which debate and maneuverability resides. But while discretionary space certainly …
Precedent And Speech, Randy J. Kozel
Precedent And Speech, Randy J. Kozel
Journal Articles
The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.
The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …
Virtue, Freedom, And The First Amendment, Marc O. Degirolami
Virtue, Freedom, And The First Amendment, Marc O. Degirolami
Notre Dame Law Review
The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods—as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost. The Article concludes with two speculations. First, it seems we are no longer …
Second Thoughts About The First Amendment, Randy J. Kozel
Second Thoughts About The First Amendment, Randy J. Kozel
Journal Articles
The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech. Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article …
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Journal Articles
More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …
Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett
Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett
Journal Articles
Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …