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