Religion Law Commons^™

Papal Jurisprudence, Chad Marzen, William Woodyard

Notre Dame Journal of International & Comparative Law

No abstract provided.

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 …

Who Is A Minister? Originalist Deference Expands The Ministerial Exception, Jared C. Huber

Notre Dame Law Review

The ministerial exception is a doctrine born out of the Religion Clauses of the First Amendment that shields many religious institutions’ employment decisions from review. While the ministerial exception does not extend to all employment decisions by, or employees of, religious institutions, it does confer broad—and absolute—protection. While less controversy surrounds whether the Constitution shields religious institutions’ employment decisions to at least some extent, much more debate surrounds the exception’s scope, and perhaps most critically, which employees fall under it. In other words, who is a "minister" for purposes of the ministerial exception?

Amicus Curiae Brief Of The Notre Dame Law School Religious Liberty Clinic In Support Of Plaintiffs-Appellants, John A. Meiser, Meredith Holland Kessler

Court Briefs

Nos. 23-3453 and 23-3633
Spirit of Aloha Temple v. County of Maui

Appeal from the United States District Court for the District of Hawaii Honorable Susan Oki Mollway (No. 1:14-cv-00535-SOM-WRP)

From the Summary of the Argument

To determine whether a land-use regulation unlawfully imposes a substantial burden on a plaintiff’s religious exercise, courts conduct a holistic and nuanced inquiry. At bottom, that analysis asks whether and to what extent the government has impaired the plaintiff’s ability to fulfill a religious need. The answer to this question must take into account a range of considerations concerning the plaintiff’s religious beliefs and …

The "Nonministerial" Exception, Athanasius G. Sirilla

Notre Dame Law Review

In 2014, Charlotte Catholic High School declined to continue Lonnie Billard’s employment as a substitute drama teacher after he publicly announced, via Facebook, that he and his same-sex partner were getting civilly married. Billard sued the school in the Western District of North Carolina for unlawful employment discrimination under Title VII of the Civil Rights Act due to his sexual orientation. The district court granted summary judgment in favor of Billard. The court first held that the high school’s actions could constitute unlawful sex discrimination in light of the Supreme Court’s ruling in Bostock v. Clayton County. The district court …

Amicus Curiae Brief Of The International Council Of Thirteen Indigenous Grandmothers And Carol Logan In Support Of Appellants, Stephanie Hall Barclay, John A. Meiser

Court Briefs

No. 23-50746
Perez v. City of San Antonio

Appeal from the United States District Court for the Western District of Texas Honorable Fred Biery (5:23-cv-00977-FB)

From the Summary of the Argument

For centuries, generations of the Lipan-Apache people have gathered for prayer, mediation, and worship along a bend in the Yanaguana—known as the San Antonio River in English—which mirrors the constellation Eridanus in the skies above. It is a place where the lower, middle, and upper worlds come together; a place that reflects the Yanaguana creation story, which teaches that life began in the area when droplets of water fell …

Brief Amicus Curiae Of The Bruderhof, Clear, The Jewish Coalition For Religious Liberty, And The Sikh Coalition In Support Of Rehearing En Banc, Francesca Matozzo

Court Briefs

No. 22-30686
Damon Landor v. Louisiana Department of Corrections and Public Safety

Appeal from the United States District Court for the Middle District of Louisiana, No. 3:21-cv-733 The Honorable Shelly D. Dick, Chief Judge

From the Summary of the Argument

The Fifth Circuit should rehear en banc the panel decision in this case because it presents a “question of exceptional importance” under Fed. R. App. P. 35: whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) authorizes monetary damages. This issue is exceptionally important for two reasons.

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Clinic In Support Of Plaintiffs' Motion For Summary Judgment, Casey M. Nokes, Meredith Kessler

Court Briefs

No. 1:22-cv-00156-CL
St. Timothy's Episcopal Church v. City of Brookings

From the Argument

Congress unanimously enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) to provide sweeping protection for religious exercise against discrimination in land-use regulation. To accomplish this goal, the statute generally prohibits the government from implementing land-use regulations in a manner that imposes a substantial burden on the religious exercise of a person or organization. And several provisions—including the statute’s capacious definition of “religious exercise” and its broad-construction mandate—emphasize the statute’s breadth.

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.

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 …

Christians And/As Liberals?, Steven D. Smith

Notre Dame Law Review

Christianity and liberalism were made to fit each other, like hand and glove. According to some interpretations, anyway. Liberal constitutionalism, with its commitments to freedom and equal human dignity, is the political system that reflects and embodies Christian commitments; and the constitutional legal order that accompanies liberalism, centrally including legally enforced rights of religious freedom, is the mode of government that best permits Christians to live in accordance with their faith in a fallen and deviant world. Thus, a couple of decades ago, Robert Kraynak reported that “[a]lmost all churches and theologians now believe that the form of government most …

"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan S. Chapman

Notre Dame Law Review

This Essay first attempts to understand how a contested Christian doctrine found its way into constitutional law. It does so through a reverse genealogy of ideas—an archaeology, perhaps. The Essay begins by sketching how U.S. constitutionalism, in both theory and doctrine, reflects the belief that the “arc of the moral universe is long, but it bends toward justice.” It then suggests that underlying this constitutional theme is a merger of two features of American civil religion: the tradition of treating the Declaration of Independence and the Constitution as the central texts of a sacred canon and the belief that America …

Catholic Liberalism And The Liberal Tradition, Kathleen A. Brady

Notre Dame Law Review

Criticisms of liberalism are nothing new. All political traditions have their detractors, and as in the past, today’s critics of liberalism include those on the left and right as well as religious believers and those without religious affiliations. However, in very recent years, far-reaching and deepening critiques have been emerging from an unlikely source. Throughout American history, the nation’s religious communities have been among the strongest defenders of religious freedom as well as other fundamental liberal values such as limited government, democratic institutions, civic equality, and other civil freedoms. Conservative Christians have been no exception. With other Americans, they have …

"It Is Tash Whom He Serves": Deneen And Vermeule On Liberalism, Andrew Koppelman

Notre Dame Law Review

I worry that some recent Christian criticisms of liberalism are the kind of fantasy that Murdoch warned about, caricaturing what they purport to oppose. They are also ominously vague about what would replace it. Both writers echo earlier Christian flirtations with Marxism: philosophical errors lead idealists to gullibly embrace authoritarian kleptocrats who do not give a damn about the people the idealists are trying to help.

I will focus on the work of Patrick Deneen, with some reference to the more abbreviated but similar critiques of liberalism by Adrian Vermeule. Both claim that liberalism’s relentless logic tends to destroy communities …

Natural Law, Parental Rights, And The Defense Of "Liberal" Limits On Government: An Analysis Of The Mortara Case And Its Contemporary Parallels, Melissa Moschella

Notre Dame Law Review

This Article explores parallels between integralists’ defense of the Mortara case (in which Pius IX removed a child from his parents’ care in order to provide him with a Catholic education) and contemporary progressive arguments for overriding the authority of parents who do not want their gender-dysphoric children to undergo social or medical gender transition. In Part I, I offer an overview of the natural law case for limited government, then in Part II I turn more specifically to a natural law defense of parental rights as an essential aspect of limited government. In the following Part, I return to …

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 …

Unopposed Brief Amicus Curiae Of Clear, The Jewish Coalition For Religious Liberty, And The Sikh Coalition In Support Of Appellant, Stephanie Hall Barclay, Francesca Matozzo

Court Briefs

No. 23-131
Franklin Loving v. Robert Morton

Appeal from the United States District Court for the Southern District of New York, No. 3:20-cv-11135

From the Summary of Argument

The Second Circuit should re-examine its precedent to allow for monetary damages for individual-capacity suits under the Religious Land Use and Institutionalized Persons Act (RLUIPA) for three reasons. First, RLUIPA’s text follows the same approach as 42 U.S.C. § 1983 and should be interpreted to afford the same types of broad remedies. Before Employment Division of Oregon v. Smith, 494 U.S. 872 (1990), reduced the availability of free exercise claims, free …

The Limits Of Church Autonomy, Lael Weinberger

Notre Dame Law Review

American courts apply “church autonomy doctrine” to protect the self-governance of religious institutions, based on both of the First Amendment’s religion clauses. Church autonomy’s defenders have sometimes described the doctrine as establishing distinct spheres of sovereignty for church and state. But critics have argued that church autonomy puts religious institutions above the law. They contend that church autonomy doctrine lacks limiting principles and worry that the “sphere sovereignty” theory of church and state leaves no room for accountability for wrongdoing in religious institutions. The courts, for their part, have recognized that church autonomy must have limits but have struggled to …

Brief Of Religious Liberty Scholars And Employment Law Scholars As Amici Curiae In Support Of Petitioner, Douglas Laycock, John A. Meiser, Richard W. Garnett

Court Briefs

No. 22-174
Gerald E. Groff v. Louis DeJoy

On Writ of Certiorari to the U.S. Court of Appeals for the Third Circuit

From the Summary of Argument

This case demonstrates an error that has undermined protection for religious workers across the country, in defiance of clear statutory text and underlying principles of religious liberty.

Brief Amicus Curiae Of The Bruderhof, Clear, The Jewish Coalition For Religious Liberty, And The Sikh Coalition In Support Of Appellant, Stephanie Hall Barclay, Francesca Matozzo

Court Briefs

No. 22-30686
Damon Landor v. Louisiana Department of Corrections and Public Safety

Appeal from the United States District Court for the Middle District of Louisiana, No. 3:21-cv-733 The Honorable Shelly D. Dick, Chief Judge

From the Summary of the Argument

The Fifth Circuit should re-examine its precedent to allow for monetary damages for individual-capacity suits under the Religious Land Use and Institutionalized Persons Act (RLUIPA) for three reasons. First, RLUIPA’s text follows the same approach as 42 U.S.C. § 1983 and should be interpreted to afford the same types of broad remedies. Before Employment Division of Oregon v. Smith, …

Religious Liberty And Judicial Deference, Mark L. Rienzi

Notre Dame Law Review

Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself.

The Supreme Court took a decidedly Thayerian approach to the First Amendment …

Brief Amicus Curiae Of The Bruderhof, Clear, Muslim Advocates, And The Sikh Coalition In Support Of Appellant, Stephanie Hall Barclay, Francesca Matozzo

Court Briefs

No. 22-2342
Thomas Walker v. John Baldwin

Appeal from the United States District Court for the Northern District of Illinois, Western Division, Honorable Iain D. Johnston (3:19-cv-50233)

From the Summary of the Argument

The Seventh Circuit should re-examine its precedent to allow for monetary damages for individual capacity suits under the Religious Land Use and Institutionalized Persons Act (RLUIPA) for three reasons. First, RLUIPA’s text follows the same approach as 42 U.S.C. § 1983 and should be interpreted to afford the same types of broad remedies. Before Employment Division of Oregon v. Smith, 494 U.S. 872 (1990), reduced the …

Brief Of Religious Liberty Scholars And Employment Law Scholars As Amici Curiae In Support Of Petitioner, Douglas Laycock, John A. Meiser, Richard W. Garnett

Court Briefs

No. 22-174
Gerald E. Groff v. Louis DeJoy

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit

From the Summary of Argument

This case is an ideal vehicle for correcting an error that has undermined protection for religious workers across the country, in defiance of clear statutory text and underlying principles of religious liberty.

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Clinic In Support Of Plaintiffs-Appellants, John A. Meiser, Francesca Genova Matozzo

Court Briefs

No. 22-11674
Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama

Appeal from the United States District Court for the Southern District of Alabama No. 1:16-cv-00395

From the Summary of the Argument

This Court already corrected the district court’s errant understanding of RLUIPA’s substantial-burden analysis once in this case. Unfortunately, a second correction is needed now.

In Thai Meditation Association’s first appeal, this Court explained that “the district court misread our opinion in Midrash” and, as a consequence, had erroneously required the Association to show that the government “completely prevent[ed]” its religious exercise in order to demonstrate …

Brief Of Amicus Curiae Religious Freedom Institute In Support Of Petitioner, John A. Meiser, Nicole Stelle Garnett, Richard W. Garnett Iv, Francesca Genova Matozzo

Court Briefs

No. 21-1405
Lester J. Smith v. Timothy Ward

On Petition for Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit

From the Summary of Argument

Lester Smith comes to this Court in unusual circumstances: the district court found that the Georgia Department of Corrections offered no rationale that could justify its prohibition on beards longer than half an inch under RLUIPA, and yet— without disputing that finding—the Eleventh Circuit ruled that the State may still enforce the half-inch limitation against Smith. The Eleventh Circuit’s denial of any relief from what has been shown to be …

Whose Secularism? Which Laïcité? Negotiating Transnational And National Constitutionalism In Kosovo, Thomas J. Hellenbrand

Notre Dame Law Review

This Note will proceed as follows: Part I will set the stage and briefly outline the history of Kosovo and its current political status. Part II will then introduce the Kosovo Constitution and the process by which international agreements (such as the European Convention of Human Rights) were embedded in the text and made binding legal authority. It will show that, although the international agreements are binding, the Kosovo Constitution does not make international case law obligatory. Part III will then address different foundational documents drafted in anticipation of Kosovo’s statehood and how judicial and administrative institutions should apply them …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Notre Dame Law Review

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

Brief Of Amici Curiae Eparchy Of Our Lady Of Lebanon Of Los Angeles And The Orthodox Church In America In Support Of Appellee's Petition To Transfer, John A. Meiser

Court Briefs

No. 22S-CP-302
Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc.

Court of Appeals Case No. 21A-CP-00936

Appeal from the Marion Superior Court 1

Trial Court Case No. 49D01-1907-PL-027728

The Honorable Lance Hamner, Special Judge

From the Summary of Argument

This case challenges a decision that is manifestly ecclesiastical: a directive from the Archbishop of Indianapolis regarding what policies a religious school must follow in order to be faithfully Catholic and to remain formally part of his Archdiocese. That is a question of exclusively religious concern. In the religious traditions of the Archdiocese and amici, it is a question which …

Defining “Substantial Burdens” On Religion And Other Liberties, Sherif Girgis

Journal Articles

The U.S. Supreme Court seems poised to restore free exercise exemptions from neutral laws that burden religion. But pivotal Justices have asked how to narrow religious exemptions. This Article proposes answers with wide-ranging implications for the future—and limits—of free exercise, and for the doctrine on other liberties.

To date, courts applying exemptions from “substantial burdens” on religion have tended to narrow protections to the detriment of religious minorities. But many fear that expanding exemptions would over-protect Christians in culture-war cases.

Striking a balance will require a sound definition of “substantial burdens.” But the current, strongly pro-religion Court will not impose …

Taking Justification Seriously: Proportionality, Strict Scrutiny, And The Substance Of Religious Liberty, Stephanie H. Barclay, Justin Collings

Journal Articles

Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have be-come even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to …