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 …

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 …

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 …

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 …

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 …

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, …