Constitutional Law Commons^™

Compelling Compliance: An Analysis Of Methods For Enforcing New York’S Compulsory Education Law As Applied To Haredi Yeshivas, Kaitlyn Sivertsen

Fordham Law Review

This Note explains recent findings that many of New York’s Haredi yeshivas are failing to comply with the compulsory education laws and advocacy for the state to heighten enforcement. It examines other community members’ opposition to this belief and numerous legal challenges. This Note advances legal scholarship by pointing out that although these debates regarding education and religious freedom are important, in the context of New York’s Haredi yeshivas, they are futile without also recognizing that New York’s statute does not provide for efficient means of enforcement. There is little to no existing literature on this specific issue. Thus, this …

Regulating Social Media Through Family Law, Katharine B. Silbaugh, Adi Caplan-Bricker

Faculty Scholarship

Social media afflicts minors with depression, anxiety, sleeplessness, addiction, suicidality, and eating disorders. States are legislating at a breakneck pace to protect children. Courts strike down every attempt to intervene on First Amendment grounds. This Article clears a path through this stalemate by leveraging two underappreciated frameworks: the latent regulatory power of parental authority arising out of family law, and a hidden family law within First Amendment jurisprudence. These two projects yield novel insights. First, the recent cases offer a dangerous understanding of the First Amendment, one that should not survive the family law reasoning we provide. First Amendment jurisprudence …

A Proxy For Piety: A Closer Look At Religious Cost In The Substantial Burden Inquiry, Philip Andrew B. Wines

Fordham Law Review Online

This Comment discusses whether the Establishment Clause and “religious question” doctrine prohibit courts from considering the subjective religious harm suffered by free exercise claimants when determining if laws impose a “substantial burden” on the claimant, as defined by the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA). It explores a dilemma that courts are presently facing. They must choose either to wade into constitutionally perilous theological debates to decide cases on their merits, or to defer to free exercise claimants on their own assertions of substantial burden and risk swallowing up the law …

Balancing Freedom Of Expression And Equality On College Campuses In The Wake Of Intensified Antisemitism, Andrea Jane Martin

Brooklyn Law Review

The long-standing debate about free speech on college campuses was reignited by the attack on Israel by Hamas on October 7, 2023. Since then, anti-Israel advocacy at universities has drastically escalated. During demonstrations, protests, and rallies, students shout vile antisemitic slogans, call for the death of Jews and the destruction of Israel, promote violence against Jews, and harass and threaten fellow students because they are Jewish. Some university administrators have been publicly accused of floundering in their responses to intensifying antisemitic campus environments and failing to protect Jewish students from harassment. In defense of their inaction, a frequent retort is …

Dejoyful Noise: Reimagining Title Vii Religious Accommodations In The Wake Of Groff V. Dejoy, Mikko Biana

Brooklyn Law Review

The prominence of religion in everyday life has dwindled in recent decades. The number of Americans who attend weekly religious services continues to decline, and wide swaths of the population now profess irreligion altogether. Despite this trend, constitutional mandates such as the Free Exercise and Establishment Clauses remind society that throughout history and into the present day, the relationship between religion and state has been and always will be ripe for discussion. The 2023 Supreme Court decision Groff v. DeJoy exemplifies this characterization. Prior to Groff, the Court primarily relied on a 1977 case, Trans World Airlines, Inc. v. Hardison, …

Liberty And Equality Under The First Amendment: Scrutinizing Book Bans Through An Equal Protection Framework, Sarah Ryan

Brooklyn Law Review

While the constitutional text refers only to liberty, equality has been recognized as an implicit principle of the First Amendment. The guarantee of free speech ensures an equal opportunity for every voice to be heard. As school book bans proliferate, the consistent targeting of titles containing themes of race or LGBTQIA+ identity reveals a discriminatory motivation on the part of state actors. The resultant infringement on students’ right to receive information, as well as the unequal treatment of particularly-themed content would seemingly run afoul of both the First Amendment and the Equal Protection Clause. Given the broad discretion granted to …

Livin' On A Legislative Prayer: How Prayer At A School Board Meeting Survives Under An Exception To The Establishment Clause, Brian Muff

Touro Law Review

This Note discusses the circuit split between the Ninth Circuit and the Fifth Circuit on whether prayer should be permitted to open up a school board meeting. First introducing the topic and explaining the history of legislative prayer in America, the Note then discusses governing Supreme Court precedent concerning school prayer and legislative prayer. After analyzing the cases that are the subject of the circuit split, the Note concludes with a recommendation that the Supreme Court permit the recitation of prayer to begin a school board meeting, citing the commonalities between a school board and a legislature and making three …

School Choice & Religious Discrimination: A Story Of The Illusory "Wall Of Separation," Sour "Lemon Tests," And Overgrown "Baby Blaines", Keren Kendil

Touro Law Review

The significance of elementary school education in shaping a child's future, and the success of society, is immeasurable. The free public school system is built on the premise that every child deserves to have the equal opportunity to learn and succeed. However, this system overlooks the millions of children attending private schools due to their religious and moral convictions. This note delves into the imperative of ensuring universal access to quality elementary education for every child, irrespective of their family's religious affiliations or preferences for private schooling, highlighting the constitutional imperatives of ensuring that every child has the opportunity to …

Breaching The Walls Of The Inviolable Citadel: The Supreme Court's Treatment Of The Lemon Test And Its Progeny, Christopher C. Spinosa Jr.

Touro Law Review

The Supreme Court in Kennedy v. Bremerton finally laid the three-pronged Lemon test to rest. Instead of Lemon and its progeny, Establishment Clause cases are now to be decided based upon the historical practices and understandings of our Founding Fathers. Subsequently, the Eleventh Circuit instructed the Middle District of Florida to its analysis in Rojas v. City of Ocala. In Rojas, a prayer vigil occurred in the City's public square and featured uniformed police chaplains singing and engaging in Christian prayers. After this Note was written and submitted for publication, the district court issued its decision in Rojas …

The Three Elements Of 303 Creative And How They Limit The Decision’S Impact, Dillon J. Richards

University of Miami Law Review

In 303 Creative LLC v. Elenis, the Supreme Court held that a state could not use a public accommodation law to require a wedding website business to create websites for gay weddings. As the Court saw it, the First Amendment shielded the company because its owner did not want to express speech supporting same-sex marriage—and being forced to create websites for same-sex weddings would compel just that.

Some public reaction to the Court’s opinion—perhaps understandably—construed the case as a full-on attack on gay rights, giving businesses a so-called license to discriminate that could not be limited to the wedding …

Legislative Ethics: Improper Influence By A Lawmaker On An Administrative Agency, Mark W. Lawrence

Maine Law Review

Moral and ethical dilemmas are inherent in the legislative process. Representative democracy raises a fundamental ethical conflict for lawmakers: choosing between representing constituent views or following personal convictions. Recent moral crises of elected officials have demonstrated the complex, diverse, and problematic nature of political ethics, yet the belief that these guardians of the public trust must successfully distinguish among the subtle distinctions of political ethics remains an integral tenet of American political thought. One of the most perplexing moral dilemmas a legislator faces is deciding what degree of influence can be exerted on an administrative agency to obtain a result …

Solicitation By Lawyers: Piercing The First Amendment Veil, Louise L. Hill

Maine Law Review

Historically, the legal profession has considered the solicitation of business inappropriate. The profession has articulated this condemnation of solicitation, which developed as a principle of good taste among a small and homogeneous group of practitioners, in the form of specific rules prohibiting its members from engaging in certain forms of conduct. In recent years, the United States Supreme Court has considered various rules that restrict the commercial speech of lawyers. Reviewing these proscriptive rules, the Court struck down categorical bans on lawyer advertising and targeted, direct mail solicitation as violative of the first amendment. Because the free flow of information …

The First Amendment In Education: May Faculty At Public Schools Be Disciplined For Political Hate Speech?, Ken M. Levy

William & Mary Bill of Rights Journal

At a House hearing on December 5, 2023, the presidents of three universities— Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by …

Chilling Victims’ Rights: The Supreme Court Creates A “Pride Of Place” For True Threats, Ana Maria Matovic

Dickinson Law Review (2017-Present)

Living in the Information Age means that information is literally always at our fingertips. This also means that keeping tabs on one another is as easy as a tap on a screen. The effortless ability to follow another’s life on the internet has led to a sinister phenomenon: cyberstalking. Prosecuting cyberstalking cases poses complex constitutional challenges. Specifically, prosecuting these cases may clash with a perpetrator’s First Amendment right to free speech. However, the First Amendment does not protect all categories of speech. One of those unprotected categories is the category of “true threats.” If a perpetrator’s conduct constitutes a “true …

Interpreting Religious Doctrine: The Third Rail That Wags The Dog In Religion Clause Jurisprudence, Samuel J. Levine

Washington and Lee Law Review

This Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely …

Make America Fake Again?: Banning Deepfakes Of Federal Candidates In Political Advertisements Under The First Amendment, Sophie Loewenstein

Fordham Law Review

In recent years, artificial intelligence (AI) technology has developed rapidly. Accompanying this advancement in sophistication and accessibility are various societal benefits and risks. For example, political campaigns and political action committees have begun to use AI in advertisements to generate deepfakes of opposing candidates to influence voters. Deepfakes of political candidates interfere with voters’ ability to discern falsity from reality and make informed decisions at the ballot box. As a result, these deepfakes pose a threat to the integrity of elections and the existence of democracy. Despite the dangers of deepfakes, regulating false political speech raises significant First Amendment questions. …

Constitutional Law—Librarians Are Not Babysitters: Enacting Legislation To Curtail Unconstitutional Book Bans, Gracie Roper

University of Arkansas at Little Rock Law Review

No abstract provided.

First Amendment Imbalance: Kennedy V. Bremerton School District, Steven K. Green

Notre Dame Law Review Reflection

This Essay seeks to unpack the competing legal claims presented by a public-school employee engaging in religious expression in conjunction with their work duties and in the presence of students. The competing First Amendment issues are several: nonestablishment, free exercise, free speech (including the government-employee speech doctrine), and parental expressive rights. These various issues came to a head in 2022 in Kennedy v. Bremerton School District where a Court majority affirmed the right of a high school football coach to engage in demonstrative prayers on the football field at the conclusion of a game. In so holding, the majority prioritized …

Public Employees As A Reflection Of A Religiously Diverse Culture, Steven T. Collis

Notre Dame Law Review Reflection

For decades, scholars and jurists have debated over whether government violates the Establishment Clause when it endorses religion or if coercion is required. In Kennedy v. Bremerton School District, the Supreme Court put this argument to rest, at least as to public employees. It grounded its decision in some form of originalism. While that will be sufficient to satisfy some readers, others will want to be assured of the wisdom of the rule originalism demands. This Essay argues that a coercion test for the private religious exercise of public employees is appropriate for a pluralistic society.

It offers four …

Thoughts On The Architecture Of Freedom Of Religion And Freedom Of Speech, Perry Dane

Notre Dame Law Review Reflection

This symposium was convened to explore the rights of businesses and employees to invoke freedom of religion or freedom of expression to resist certain forms of state regulation. The most immediate occasions for that discussion, at least for my purposes, are cases such as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the right of a website designer to refuse to design a wedding website for a same-sex couple. These sorts of cases, which pit the religious or expressive rights of conscientious believers against the equality rights of others, have proliferated in recent years.

I have …

Ordinary Conscience And Pretend Offenses: Protecting Those Left Out Of Title Vii After Groff, Robin Fretwell Wilson, Michael J. Petersen

Notre Dame Law Review Reflection

Part I reviews America’s foundational commitment to fairness and transparency by government, as well as the deep respect the Founders believed should be accorded to conscience specifically.

Part II applauds the unanimous decision in Groff to walk back the Supreme Court’s grievous error in Trans World Airlines, Inc. v. Hardison. We canvas illustrative cases pre-Groff in which employees, notwithstanding Hardison’s “de minimis” burden standard, proceeded to trial, and instances in which employees did not. We also illustrate how, post-Groff, employees are, rightfully, having an easier time getting to trial.

Even as Groff makes actual Title …

Cleaning The Mess Of 303 Creative V. Elenis, Netta Barak-Corren

Notre Dame Law Review Reflection

No piece of academic writing can clean, by itself, the mess left by 303 Creative v. Elenis. Only the Court can. This symposium piece can only offer analytical clarity on 303 Creative, which can help to understand and organize the mess. I will proceed to do so in three steps. First, I point out the glaring omissions of the Court’s opinion and criticize the dangerous consequences of the Court’s inexplicable approach. Second, I discuss the inconsistency of the dissent and the truth it reveals about the unviability of its sweeping position. Finally, I argue that the only way …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

Dobbs Was Wrong: The Liberty To Choose To Give Birth Should Be Federally Protected, Alysa J. Wiggins

University of the District of Columbia Law Review

No abstract provided.

First Amendment And Media Law Diversity Moot Court Competition, Roger Williams University School Of Law, Michelle Choate

School of Law Conferences, Lectures & Events

No abstract provided.

Understanding 303 Creative Llc In A Polycentric Constitutional World, Meg Penrose

Faculty Scholarship

The evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.

The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the law focus …

Brief Amicus Curiae Of Professor Matthew Steilen In Support Of Petitioners, Tiktok Inc. V. Garland (D.C. Cir. 2024) (No. 24-1113), Matthew J. Steilen

Other Scholarship

No abstract provided.

Dol Fiduciary Rule 3.0 Strikeout, Base Knock, Or Home Run?, Antolin Reiber

DePaul Business & Commercial Law Journal

No abstract provided.

Money Is Morphing - Cryptocurrency Can Morph To Be An Environmentally And Financially Sustainable Alternative To Traditional Banking, Clovia Hamilton

DePaul Business & Commercial Law Journal

No abstract provided.

Survey Evidence In Trademark Actions, Ioana Vasiu And Lucian Vasiu

DePaul Business & Commercial Law Journal

No abstract provided.