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Full-Text Articles in Law
Narrow Tailoring, Compelling Interests, And Free Exercise: On Aca, Rfra And Predictability, Mark Strasser
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 …
Congress, Federal Courts, And Domestic Relations Exceptionalism, Mark Strasser
Congress, Federal Courts, And Domestic Relations Exceptionalism, Mark Strasser
Mark Strasser
Family law is often cited as a paradigmatic example of state law, and the Supreme Court has often trumpeted the “domestic relations exception” as a justification for preventing federal involvement in family matters. Yet, it is of course true that a variety of federal programs affect the family, so it is important to figure out which areas are reserved for the states and which are not. Further, the federal courts have heard a variety of cases involving family matters, so it is not as if the courts never have jurisdiction to hear such cases. The tests for determining when the …
The Next Battleground? Personhood, Privacy, And Assisted Reproductive Technologies, Mark Strasser
The Next Battleground? Personhood, Privacy, And Assisted Reproductive Technologies, Mark Strasser
Mark Strasser
Personhood statutes and amendments have been proposed in several states. As a general matter, they establish as a matter of state law that legal personhood begins at conception. Such laws may have implications for state policies concerning abortion and contraception, and will have implications for other areas of law including state policies related to assisted reproductive technologies. Yet, some of the ways in which these different areas of law might be affected are not well understood and thus are explored here.
Whistleblowing, Public Employees, And The First Amendment, Mark Strasser
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
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 …
What’S It To You: The First Amendment And Matters Of Public Concern, Mark Strasser
What’S It To You: The First Amendment And Matters Of Public Concern, Mark Strasser
Mark Strasser
In Snyder v. Phelps, the United States Supreme Court reaffirmed that the First Amendment protects discussions on matters of public concern, thereby underscoring the importance of the distinction between matters of public concern and matters of mere private interest. Yet, the Court has never offered clear criteria by which to determine which speech falls into one category and which falls into the other. This article traces the development of the “matters of public concern” doctrine, explaining the role that the concept has played in cases ranging from defamation to employment termination to publication of (allegedly) private facts. The current jurisprudence …
Making The Anomalous Even More Anomalous: On Hosanna-Tabor, The Ministerial Exception, And The Constitution, Mark Strasser
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 …
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 …
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 …