First Amendment Commons^™

After Affirmative Action, Meera E. Deo

Seattle University Law Review

This is a time of crisis in legal education. In truth, we are in the midst of several crises. We are emerging from the COVID pandemic, a period of unprecedented upheaval where law students and law faculty alike struggled through physical challenges, mental health burdens, and decreased academic and professional success. The past few years also have seen a precipitous drop in applications to and enrollment in legal education. Simultaneously, students have been burdened with the skyrocketing costs of attending law school, taking on unmanageable levels of debt. And with the Supreme Court decision in SFFA v. Harvard, we are …

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

The First Amendment To The Constitution, Associational Freedom, And The Future Of The Country: Alabama’S Direct Attack On The Existence Of The Naacp, Helen J. Knowles-Gardner

Seattle University Law Review

Sixty years ago, on Wednesday, April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized the 1958 decision in NAACP v. Alabama ex rel. Patterson as an indirect effort to control the NAACP.

With the benefit of material obtained from numerous archival sources, …

What Is In Your Tampon? Increasing Transparency In Menstrual Products, Elianna Spitzer

Seattle University Law Review

The average person who menstruates will bleed for an average of five days, every twenty-four to thirty-eight days, over several decades and could use thousands of disposable menstrual products in their lifetime. Menstrual products line retail shelves. They can be found in homes, bags, and bodies—but until 2021, manufacturers were not required to disclose the ingredients used to make these products to consumers at all. In fact, they still are not federally required to disclose menstrual product ingredients on product packaging. Instead, in recent years, changes to menstrual product labels have largely been the result of state legislation. In 2019, …

Due Process Shaped By The Present Instead Of The Past: The Needed Reinvigoration Of A Lawrence Vision Of Due Process, Azor Cole

Seattle University Law Review

The recognition of unenumerated rights, rights implied from the text of the constitution, is a political battlefield waged through law with profound implications for all Americans. Generally, there have been two prongs for an inquiry into an unenumerated constitutional right under the Fourteenth Amendment. One is to ask whether the right to be found is objectively deeply rooted in this Nation’s history and tradition. The other is to ask whether the right to be found is fundamental to this Nation’s scheme of ordered liberty. The current Supreme Court has effectively done away with this present-day liberty analysis, saying it is …

Sneakers, The Shoes That Talk The Talk And Walk The Walk: How Jack Daniel’S Properties, Inc. V. Vip Products Left Its Footprint On Trademark Law And The Sneaker Industry, Nitya Tolani

Seattle University Law Review

As the fashion industry—including the sneaker industry housed within it—continues to go through the motions of collectively flocking out, and then collectively flocking again to the newest innovations in the world of wearables, the landscape of laws to protect and promote those innovations expands as well, mainly in the area of intellectual property law. Although copyright, trademark, and patent law can cover innovations in the fashion industry, this Note centers its analysis on trademark law. Trademark law has been through notable change in recent years because of the United States Supreme Court’s 2023 decision in Jack Daniel’s Properties, Inc. v. …

Prejudice Standards In Washington’S Appellate Courts, Andrew B. Van Winkle

Seattle University Law Review

When an appellate court finds an error to have occurred during a proceeding, the error is not yet subject to correction. In order to merit a remedy, the error must have been sufficiently prejudicial to the aggrieved party’s case. Drawing the line between correctable and non-correctable errors is not an easy task, for it often requires guessing at what was in the minds of jurors and trial judges. To cope with this task, courts have devised various rules and tests for deciding whether an error was likely prejudicial or not. These standards often go by names such as “harmless error,” …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Dignity, Deference, And Discrimination: An Analysis Of Religious Freedom In America’S Prisons, Elyse Slabaugh

BYU Law Review

The free exercise of religion often presents a complex reality in prison. Over the years, the standard of scrutiny for free exercise claims has not only been easily alterable but also unclear and inconsistent in its application. Recent legislation, such as RLUIPA and RFRA, has significantly improved the state of religious freedom in prisons. However, two U.S. Supreme Court decisions on RLUIPA—Cutter v. Wilkinson and Holt v. Hobbs—have led to some confusion among lower courts regarding the level of deference that should be afforded to prison officials. Although Holt demonstrated a hard look approach to strict scrutiny, it did nothing …

When “Close Enough” Is Not Enough: Accommodating The Religiously Devout, Dallan F. Flake

BYU Law Review

Title VII of the Civil Rights Act of 1964 requires employers to “reasonably accommodate” employees’ religious practices that conflict with work requirements unless doing so would cause undue hardship to their business operations. Can an accommodation be reasonable if it only partially removes the conflict between an employee’s job and their religious beliefs? For instance, if a Christian employee requests Sundays off because he believes working on his Sabbath is a sin, and his employer responds by giving him Sunday mornings off to attend church services but requires him to work in the afternoon, has the employer provided a reasonable …

Don’T Say Gay Or God: How Federal Law Threatens Student Religious Rights And Fails To Protect Lgbtq Students, Stephen Mcloughlin

BYU Law Review

Federal law requires schools to protect students from discrimination based on their sexual orientation and gender identity. This protection is based on the principle that students must be free to explore their self-identity within the school environment as part of their intellectual development. Thus, schools must eliminate speech that threatens LGBTQ students based on their gender identity or sexual orientation. However, schools must also protect free speech and religious rights. Indeed, the expression of religious beliefs is also crucial to intellectual growth. Thus, schools must develop student speech policies that protect LGBTQ students from harmful speech while protecting controversial religious …

Free Exercise Of Abortion, Elizabeth Sepper

BYU Law Review

For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they …

The Right To Be Proselytized Under International Law, Ryan Cheney

BYU Law Review

Legal analyses of proselytism have tended to focus on the rights of the proselytizer and on the right of the target of proselytism, or “proselytizee,” to be free from such “interference.” However, such analyses do not fully account for all rights involved in proselytism. When people are prevented from being proselytized, such as by law or by persecution, an important consequence is that they are cut off from a significant source of information on and mechanism for exploring and joining other religions. Despite stigmatizations of proselytism, many people regularly accept it and learn about and join other faiths through it. …

The Impact Of Religion And Religious Organizations, Elizabeth A. Clark

BYU Law Review

Legal scholars often see religion as a mere private preference, choice, value, or identity with no more meaning or positive social impact than any other preference, choice, value, or identity. If anything, religion’s negative impacts are often highlighted. For example, a focus on the harms of religion often underlies contemporary legal debates about religious exemptions and tensions between religious rights and LGBTQ rights or reproductive rights. Conversely, scholars in other fields have documented religion’s distinctive pro-social features, proposing mechanisms by which religion has unique positive impacts on individuals, families, and society. While recognizing that, for its practitioners, religion has its …

Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth

University of Cincinnati Law Review

No abstract provided.

Education, The First Amendment, And The Constitution, Erwin Chemerinsky

University of Cincinnati Law Review

No abstract provided.

School Matters, Ronna Greff Schneider

University of Cincinnati Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Playing The Unfair Game: Apostates, Abuse & Religious Arbitration, Thomas Floyd

William & Mary Law Review

This Note argues that the Bixler [v. Superior Court] approach should become the standard for evaluating the enforceability of religious arbitration against ex-members. Courts should not enforce agreements to religious arbitration against ex-members of a faith when the relevant conduct occurred after their religious affiliation ended. The First Amendment right of believers to leave their faith should prevail over the First Amendment right of churches to police their internal religious doctrine. Siding with the institutions on this issue allows them the power to exert control over apostates in perpetuity through an unintended synergy of the First Amendment and …

Appellant's Reply Brief, Zack Greenamyre, Gerald R. Weber Jr., John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 23-10332
Rev. Stephen Jarrard v. Sheriff of Polk County

Appeal from the United States District Court for the Northern District of Georgia No. 4:20-cv-00002-MLB

From the Argument

A jury could easily find that Moats and Sharp excluded Jarrard from the ministry program because they disfavor his religious expression.

Masking God In Resurrection School V. Hertel: One School’S Efforts To Exercise Religion During An Ongoing Pandemic, Sean Turnipseed

MC Law Review

SARS-CoV-2, colloquially termed “COVID-19,” dramatically altered the world in which we live. But no one would have guessed the virus would spark a flurry of litigation under the U.S. Constitution’s Free Exercise Clause. Shortly after the virus began to spread, former President Donald Trump advised a twoweek plan with hopes to “flatten the curve” of COVID-19’s impact. The plan encouraged individuals to avoid gatherings with ten or more people, work and attend school from home, eat at home rather than in restaurants, and avoid discretionary travel and shopping, to name a few. But the two-week plan did not effectively thwart …

Transforming Natural Religion: An Essay On Religious Liberty And The Constitution, Steven J. Heyman

BYU Law Review

Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding–era Americans thought when they incorporated the First Amendment’s Free Exercise Clause into the constitutional order that they were creating. Contrary to the views taken by many judges and scholars, …

Sacred Spheres: Religious Autonomy As An International Human Right, Diana V. Thomson, Kayla A. Toney

Catholic University Law Review

How should courts resolve thorny human rights disputes that arise within religious groups? According to an emerging international consensus, they shouldn’t. When a case involves sensitive internal decisions by a religious organization, such as choosing who is qualified to teach the faith, courts are increasingly taking a hands-off approach. This global consensus has formed across international treaties, tribunals, and domestic courts in European and American nations. Every major human rights instrument and many international and domestic courts recognize that religious freedom must extend to religious communities, especially houses of worship and schools where believers gather to practice their faith and …

Appellant's Opening Brief, Zack Greenamyre, W. Gerald Weber, John A. Meiser, Meredith Holland Kessler

Court Briefs

No. 23-10332
Rev. Stephen Jarrard v. Sheriff of Polk County

Appeal from the United States District Court for the Northern District of Georgia No. 4:20-cv-00002-MLB

From the Summary of the Argument

This is an unusual appeal. Sheriff Johnny Moats and Chief Jailer Al Sharp all but admitted that they retaliated against Jarrard and barred him from Polk County Jail’s volunteer ministry program because they disagree with his religious belief that baptism is required for salvation. Indeed, Moats told Jarrard in writing that Jarrard’s beliefs are “contrary to the teaching of the Bible” and that he would not be allowed to …

Clark Memorandum: Spring 2023, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Fidei Defensor: Defending Faith to Enable Communities of Reconciliation
• Conscience, Peacebuilding, and Faith-Based Law Schools
• Elvis Was Right: The Unavoidable Intersection Between Personal Values and a Fulfilling Practice of Law
• The Future of the Establishment Clause: Implications of Kennedy v. Bremerton School District

The Primacy Of Free Exercise In Public-Employee Religious Speech, Nicholas J. Grandpre

Notre Dame Law Review

This Note addresses the question left open by the Court and highlighted by Justice Thomas: under what standard of review should courts review public-employee religious expression protected by both the Free Speech and Free Exercise Clauses? This Note begins by introducing the doctrine of government-employee speech. Then, this Note surveys proposals within existing scholarship that address how courts ought to treat public-employee religious expression. In doing so, this Note evaluates the following proposals: (1) applying Pickering balancing as is; (2) applying a modified version of Pickering balancing; (3) replacing Pickering balancing with intermediate scrutiny; (4) the Holmesian approach: deeming public-employee …

The Rise Of Public School Prayer With The Demise Of Lemon V. Kurtzman, Samantha Thompson Lipp

Mercer Law Review

The Supreme Court of the United States has officially overturned Lemon v. Kurtzman. The controversial and heavily criticized Lemon opinion sets forth the primary test courts used for over fifty years in analyzing claims under the Establishment Clause. The official overruling of Lemon signals the Supreme Court’s embrace of a more accommodating approach toward religion in the public sphere. This Comment predicts how, in Lemon’s absence, the Supreme Court will likely reassess precedent in the context of public school prayer and become more accommodating of religion.

In Part II, this Comment addresses the three approaches to interpreting the …

Clerical-Collar Crime: How Church Members Deal When Church Leaders Steal Church Property, Preslie B. Grumbles

Texas A&M Journal of Property Law

Christian churches will lose an estimated $59 billion worldwide to embezzlement in 2022. Embezzlement and other white-collar crimes are property theft crimes characterized by the violation of another’s trust. This Comment names white-collar crimes committed exclusively by church leaders or officials “clerical-collar crimes.” Distinguishing clerical-collar crime from white-collar crime gives weight to and promotes future consideration of the unique problems that arise when church leaders and officials commit clerical-collar crime.
Although clerical-collar crime is subject to civil and criminal liability, this Comment focuses solely on victims’ experiences in bringing civil claims against perpetrators of clerical-collar crime in Texas and leaves …