First Amendment Commons^™

Private Disestablishment, Gaurav Mukherjee

BYU Law Review

Should public funds support religious schools? The Supreme Court’s 4–4 decision in St. Isidore of Seville Catholic Virtual School v. Drummond may have blocked America’s first religious charter school but set no precedent, leaving core constitutional questions unanswered. This Article argues that St. Isidore illustrates “private disestablishment,” where religious institutions claim private status while exercising public power—allowing them to access public benefits without accepting public constraints. Blurring the boundary between private and public allows these entities to secure public benefits like funding and regulatory advantages while avoiding obligations that typically constrain public institutions, such as non-discrimination or religious neutrality.

The …

The Once And Future Freedom Of The Church: Three Stories, Steven D. Smith

BYU Law Review

This Essay, prepared to be delivered as a lecture at Brigham Young University, discusses three historical stories as a vehicle for suggesting that the concept of “freedom of the church” (or libertas ecclesiae) has not only a colorful and momentous past but an important future as well. Part I discusses how the Supreme Court’s decision in Hosanna Tabor v. Evangelical Lutheran Church helped to revive the venerable theme of freedom of the church. Part II considers the relation between freedom of the church and political authority during the centuries between the collapse of the Western Roman Empire and modernity. Part …

Slavery And The Myth Of Religious Liberty, Audra Lyn Savage

BYU Law Review

This is a story about two ships. One is semi-mythical. The other is half-forgotten but brutally real. The first ship is the story of early settlers who sailed from Europe to escape religious persecution and—through hard work, perseverance, and righteous rebellion—built a nation upon the fundamental freedom of religious liberty for all. The second ship represents the painful history of America, with its millions of Africans stolen from their homeland, placed in unimaginable conditions, and stripped of their language, heritage, and most significantly, their beliefs. Current religious liberty jurisprudence centers around the historical understanding of the creation and ratification of …

Regulating Beauty: Advertising Restrictions, The First Amendment, And The Rise Of Social Media Models, Annie Miner

BYU Law Review

Unrealistic beauty standards in advertising have long raised concerns about their effects on body image and eating disorders, particularly for young women. While traditional means of advertising often use extremely thin models and digitally altered images, the shift in the advertising landscape towards an increased use of social media presents new challenges. Influencers have largely replaced models in advertising, and they often present unrealistic beauty standards, altered images, or dangerous eating and exercise habits to their young, impressionable audiences. In response to these concerns, several countries, including France, Norway, and Israel, have adopted regulations banning the use of ultrathin models …

Religious Employment And The Tensions Between Liberty And Equality, R. Shawn Gunnarson, James C. Phillips, Christopher A. Bates

BYU Law Review

Located in Title VII of the Civil Rights Act of 1964 is an exemption for religious employers that is often misunderstood. Often courts and commentators mischaracterize it as a narrow privilege for religious employers to hire people of the same religion. But the statute’s text says otherwise. This article resolves interpretive debates about the meaning and application of the religious employer exemption through a close textualist reading that discovers a new understanding of the structure of Title VII. Our approach applies the tools of textualism, the prevailing theory of statutory interpretation. Paying attention to the text and structure of Title …

Did Anderson V. Tiktok Get It Right? Holding Social Media Providers Accountable For Harm To Adolescents, Allison Mitton

BYU Law Review

When dangerous social media challenges go viral and cause harm to adolescents and young children, should the platform be held liable for pushing that content? As it currently stands, Section 230 of the Communications Decency Act of 1934 prevents this from happening. However, Anderson v. TikTok—a recent suit brought on behalf of a ten-year-old girl who died after asphyxiating herself while participating in the viral “Blackout Challenge”—seeks to change that.

The Third Circuit court in Anderson held that social media algorithms should be considered first-party speech, or the platform’s own expressive activity, rather than third-party speech, displaying its users’ expressive …

Them’S Fightin’ Words—Maybe: Testing The Application And Boundaries Of The “Fighting Words” Doctrine Using A Randomized Survey Experiment, Erin Cranor, Dane Thorley

BYU Law Review

Advanced note to readers: The survey experiment in this Article depicts acts of verbal violence, including the use of raceand gender-based epithets. Some of the relevant caselaw also includes offensive or harmful language.

As one of only a handful of exceptions to the First Amendment’s bar on laws proscribing speech, “fighting words” are defined as “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”1 It is unclear, however, how this relatively old doctrine applies to contemporary speech. Additionally, the standard is itself potentially problematic in …

Religious Freedom As Freedom, Helen M. Alvaré

BYU Law Review

In recent decades, the exercise of religious freedom is increasingly associated with oppression. This is not only due to the disagreement between religions and some governments concerning sexual expression matters—contraception, abortion, same-sex relations, and transgender identity—but is also due to diverging convictions about the substance and sources of freedom. This Article will examine a current and highly visible set of convictions about the contents of human freedom, which together suggest that a thriving religious witness threatens freedom itself. These convictions often surface in the context of laws touching upon sexual expression. It will then contrast these convictions with those found …

Two Concepts Of Judicial Deference To Religious Claims, Chagai Schlesinger

BYU Law Review

Religious exemptions from general laws are everywhere. The U.S. Supreme Court is expanding its exemption doctrine, systemically preferring religious needs over conflicting considerations. This ignites an ongoing debate between those celebrating religious liberties and those fearing their societal costs. Assessing this judicial trend, as this Article highlights, requires noticing how it is facilitated by a broad deferential approach to religious claims, refraining from evaluating their content.

This Article argues that this broad expression of judicial deference is analytically flawed and normatively implausible. The problem lies in the failure to distinguish between two types of religious claims when deferring to them: …

The Social Psychology Of Religious Liberty Depolarization, Asma T. Uddin

BYU Law Review

This Article examines the U.S. Supreme Court's approach to cases involving religious liberty and LGBTQ+ rights through the lens of social psychology. As Americans increasingly sort into opposing “mega- identities” defined by political, racial, and religious traits, religious liberty has become a deeply polarized issue, with traditional Christians and LGBTQ+ advocates often positioned as adversaries in a zero-sum conflict. Against this backdrop, the Article argues that the Roberts Court has employed social psychological techniques—specifically “aporia” (acknowledging complexity) and “affirmation” (validating diverse viewpoints)—to de-escalate this cultural tension. By analyzing key decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Fulton v. …

They Managed A Protest: Prohibitory, Ethical, And Prudential Policing Of Academic Speech, David Schraub

BYU Law Review

No abstract provided.

Corpus Linguistics At The U.S. Patent And Trademark Office, Tabrez Y. Ebrahim

BYU Law Review

This Article examines the intersection of corpus linguistics and patent law. It introduces the foundations of corpus linguistics and its application to the law and advances the potential for its application to patent examination at the United States Patent and Trademark Office (USPTO). Historically, the disciplines of corpus linguistics and patent law did not intersect until scholars began to consider the application of corpus linguistics to patent litigation for interpretation of terms in patent claims. Interpretation of legal language provided by corpus linguistics and applied to patent examination at the USPTO has yet to be addressed and is a novel …

Bill Of Rights Nondelegation, Eli Nachmany

BYU Law Review

Speculation about the “revival” of the nondelegation doctrine has reached a fever pitch. Although the Supreme Court apparently has not applied the nondelegation doctrine to declare a federal statute unconstitutional since 1935, the doctrine may be making a comeback. The common understanding is that the nondelegation doctrine prohibits Congress from “delegating” legislative power to the executive branch. While the nondelegation doctrine may appear to be about limiting Congress, its ultimate target is delegation. But if the nondelegation doctrine is about policing delegation, then the Court has been regularly — and rigorously — applying the doctrine in a different context: In …

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 …

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, …

Liberalism, Catholic Integralism, And The Question Of Religious Freedom, Xavier Foccroulle Ménard, Anna Su

BYU Law Review

This Article investigates new Catholic integralism and its critique of liberalism and aims to answer whether a liberal idea of religious freedom is possible under an integralist regime. To do so, we first sketch the respective views of liberalism and Catholic integralism on each other, with an emphasis on integralism. For integralism, liberalism is not merely a political phenomenon, but a comprehensive worldview with hidden metaphysical and theological implications. Integralism views the function of political rule as ordering human beings to their final cause. We specifically delve in foundational Catholic principles to guide rulers when governing—prudence and subsidiarity—to establish how …

Praying For America: The Anti-Theocracy And Equal Status Principles Of The Free Exercise, Equal Protection And Establishment Clauses, Corey Brettschneider

BYU Law Review

In this essay I argue that the Constitution’s Equal Protection, Establishment, and Free Exercise Clauses share common principled limits on the role that religion can play in public life. Specifically, drawing on the free-exercise case of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the equal protection case of Romer v. Evans, and the establishment clause case of Town of Greece v. Galloway, I propose two principles to describe the proper place of religious justification as a basis for law. The first requirement is that in addition to any religious reasons for laws, the state must have …

Political Partisanship And Sincere Religious Conviction, Mark Satta

BYU Law Review

In order for a religious conviction to receive protection under the First Amendment or the Religious Freedom Restoration Act (RFRA), it must be a sincere religious conviction. Some critics of the Supreme Court’s ruling in Burwell v. Hobby Lobby have suggested that the plaintiffs in that case and in related cases were motivated more by political ideology than by sincere religious conviction. The remedy, they argue, is for courts to be quicker to scrutinize claims of religious sincerity. In this Article, I consider another possibility—namely, that current sociopolitical partisanship in the United States has eroded a clear distinction between political …

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

BYU Law Review

No abstract provided.

Moderating From Nowhere, Gilad Abiri

BYU Law Review

We are living in the midst of a battle over online hate speech regulation, and the stakes could not be higher. Hate speech not only harms its intended victims, be they individuals or groups, but it also polarizes and divides society in ways that undermine the health of democratic regimes. While there is widespread agreement that the current situation of online discourse is untenable, scholars and policymakers are deeply divided on the best way to improve it.

Until recently, American free speech norms have dominated the content moderation policies of digital media platforms. First Amendment norms are extremely resistant to …

It’S Whose Party? Accurately Defining Political Parties In First Amendment Cases, Makade Claypool

BYU Law Review

No abstract provided.

Invasion Of The Content-Neutrality Rule, William D. Araiza

BYU Law Review

No abstract provided.

School To Students: Post That, And You Won't Play, Ashley Waddoups

BYU Law Review

No abstract provided.

Kill Me Through The Phone: The Legality Of Encouraging Suicide In An Increasingly Digital World, Sierra Taylor

BYU Law Review

No abstract provided.

Native American Religious Freedom As A Collective Right, Michael D. Mcnally

BYU Law Review

No abstract provided.