Law Commons^™

Free Exercise And The Definition Of Religion: Confusion In The Federal Courts, Mark Strasser

Mark Strasser

The United States Supreme Court has sent mixed messages about what constitutes religion for free exercise purposes. The Court’s failure to offer clear criteria has resulted in widely differing interpretations in the lower courts, resulting in dissimilar treatment of relevantly similar cases. Further, some of the circuit courts employ factors to determine what qualifies as religious that are much more restrictive than the factors employed by the Court.

This article describes some of the differing approaches to defining religion offered in the circuits, noting that one of the approaches adopted across a few circuits not only mischaracterizes the Supreme Court’s …

Definitions, Religion, And Free Exercise Guarantees, Mark Strasser

Mark Strasser

The First Amendment to the United States Constitution protects the free exercise of religion. Non-religious practices do not receive those same protections, which makes the ability to distinguish between religious and non-religious practices important. Regrettably, members of the Court have been unable to agree about how to distinguish the religious from the non-religious—sometimes, the implicit criteria focus on the sincerity of the beliefs, sometimes the strength of the beliefs or the role that they play in an individual’s life, and sometimes the kind of beliefs. In short, the Court has virtually guaranteed an incoherent jurisprudence by sending contradictory signals with …

Narrow Tailoring, Compelling Interests, And Free Exercise: On Aca, Rfra And Predictability, Mark Strasser

Mark Strasser

The holding in Burwell v. Hobby Lobby Stores, Incorporated was narrow in scope—closely held, for-profit corporations must be afforded an exemption from providing insurance coverage for a few types of contraception if the corporation has religious objections to providing that coverage. In addition, the exemption requirement was based on a construction of federal statute rather than on the Constitution’s free exercise guarantees. Both the narrowness of the holding and the Court’s express disavowal that it was offering a constitutional analysis might make the opinion appear relatively inconsequential. However, because the opinion changes the focus and standards of federal law and …

Leaving The Dale To Be More Fair: On Cls And First Amendment Jurisprudence, Mark Strasser

Mark Strasser

In Christian Legal Society of the University of California, Hastings College of Law v. Martinez, the Supreme Court upheld the Hastings College of Law’s requirement that all recognized student groups have an open membership policy. The decision has been criticized for a variety of reasons, e.g., that the Court conflated the First Amendment tests for speech and association. What has not been adequately explored is the degree to which the Court has modified limited purpose public forum analysis in the university context over the past few decades, resulting in a jurisprudence that is virtually unrecognizable in light of the more …

A Family Affair? Domestic Relations And Involuntary Public Figure Status, Mark Strasser

Mark Strasser

The constitutional limitations on defamation damages have changed greatly over the past five decades. Initially, only statements about public officials triggered such limitations, but the class of individuals triggering the most demanding standard was subsequently expanded. Over the past half century, members of the Court could neither agree about the kinds of people nor the kinds of statements that should be afforded constitutional protection. Even when ostensibly agreeing about the criteria to be used in defamation cases, members of the Court disagreed greatly about how the announced criteria should be applied in practice.

One of the most doctrinally confusing aspects …

Whistleblowing, Public Employees, And The First Amendment, Mark Strasser

Mark Strasser

Recent revelations of extensive public wrongdoing illustrate the need for whistleblower protection so that governmental wrongdoing is more likely to come to light. While there is some statutory protection of whistleblowing as long as certain conditions have been met, a separate issue is the degree to which the Constitution protects whistleblowers under the First Amendment. Ironically, the constitutional protections for whistleblowers have decreased over the past several decades, leaving an impoverished system of protection for discussions of great public interest. This article analyzes the respects in which First Amendment protections for matters of great public import were once fairly robust …

The Onslaught On Academic Freedom, Mark Strasser

Mark Strasser

The United States Supreme Court has long recognized the importance of academic freedom both within and outside of the classroom. However, in a case having nothing to do with the academy, Garcetti v. Ceballos, the Court cast into doubt the validity of an entire line of cases, almost inviting the circuits to rewrite First Amendment doctrine in the entire area. The circuits have responded, creating a jurisprudence that threatens to bring about the negative consequences discussed over the past half-century. This article explores the First Amendment protections of academic freedom, explaining how Garcetti and the courts interpreting it have eviscerated …

Making The Anomalous Even More Anomalous: On Hosanna-Tabor, The Ministerial Exception, And The Constitution, Mark Strasser

Mark Strasser

In Hosanna–Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court held that the First Amendment incorporates the ministerial exception and, further, found that the plaintiff fell within that exception and so could not press her claim. However, courts and commentators hoping for clarification of Religion Clauses jurisprudence more generally or even for a firm constitutional grounding of the ministerial exception may well be disappointed. The Court has raised more questions than it has answered, and has provided such little helpful guidance to the lower courts that Hosanna-Tabor is likely to lead to greater confusion in the …

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 …

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, …