Volume 57, Issue 2

“Religious” Secularism and Legitimacy in American Democracy

Julia E. Fay

This Note seeks to contribute to scholarship on the growing tension between secularism and religion in the United States by considering the claim, made by some commentators, that secular liberalism should be considered a religion for the purposes of the First Amendment. Part I explains the historical background of the First Amendment’s Religion Clauses and surveys what little jurisprudence there is from the U.S. Supreme Court and lower courts regarding secular liberalism’s potential status as a religion. Part II lays out the landscape of current scholarship on the status of secularism, secular liberalism, and adjacent nontheistic belief systems as religions, including: (1) arguments made by some conservative Christians who maintain that secular liberalism is a religion; (2) related but distinct arguments made by scholars who argue that non-theistic beliefs should be accorded respect equal to that granted religions under the First Amendment; and (3) arguments from scholars who believe religion should continue to be treated as “special” and separate from non-religious, secular belief systems. Part III argues that, even if secular liberalism could be defined as a religion, it should not be, for two reasons. First, the proposition that secular liberalism is a religion is conceptually incoherent because it conflates strong moral conviction with religious belief. Advocates of this position misconstrue passion as transcendent commitment and treat “religion” as a functionalist label. Second, if accepted as true, this proposition would be problematic for legal theory and for the Constitution. This Note argues that the answer to the question of whether secular liberalism is a religion implicates the legitimacy of our government, because without a neutral principle of governance a democracy cannot justify its use of force against its citizens.

Considering Competency: The Need for States’ Death with Dignity Statutes to Establish Competency Committees

Andrew J. Older

Nine states and the District of Columbia have statutes which legalize physician-assisted death (PAD), the process by which a “physician provid[es], at the patient’s request, a prescription for a lethal dose of medication that the patient can self-administer by ingestion, with the explicit intention of ending life.” In the United States, this practice is confined to patients suffering from terminal illnesses who are “mentally competent.” Despite some guidance on what the word “competent” means, however, the term has proved incredibly difficult to understand in practice.

This Note argues that states’ PAD laws should statutorily create medical committees which research and, from time to time, promulgate clinical criteria in order to guide physicians who choose to participate in PAD. Part I will trace PAD’s historical background in the United States; Part II will offer some insight into the current problem that a patient competency evaluation might entail; and Part III will outline how and why medical committees could help physicians administer aid in an environment rife with uncertainty. Although this Note takes no side in the moral debates over PAD, it recognizes that states either have PAD statutes on the books or are considering such statutes in the future. As such, this Note serves to suggest necessary safeguards for a burgeoning medical-legal landscape.

Roadblocks to Finding Home: Traditional Domicile Analysis’ Fundamental Unworkability for Military Families

Haley E. Talati

Domicile, or one’s “true home,” has ramifications about personal jurisdiction, federal court diversity jurisdiction, taxation, and family law. Typically, domicile is determined by physical presence in a location and intent to remain there indefinitely. But for military personnel and their families, general common law principles and statutory reforms create more barriers and complications to establishing and maintaining a domicile of choice than the civilian population typically faces. These barriers expose military families—especially those who relocate frequently—to increased litigation risks, such as tax enforcement suits, if they fail to take additional judicially-recognized steps to make their domiciles clear.

This Note demonstrates the ways in which the common law and statutory domicile framework has proven unworkable for military personnel and advocates for reconceptualizing it to better serve those affected and to comport with the doctrine’s underlying purposes. Part I describes the modern common law approach to domicile analysis and explores how legislative reforms have modified the traditional analysis for military personnel and spouses. Part II details the practical problems military personnel face in establishing a domicile of choice, focusing on the ways in which certain legal and financial considerations disincentivize military families from establishing and maintaining domicile in a manner courts can clearly analyze through the existing framework. Part III evaluates possibilities for reforming the domicile framework. It concludes that an amendment to the existing statutory scheme should give military families the option to establish a new domicile of choice via formal declaration with each new duty station, which would drastically simplify domicile analysis and reduce litigation, while still preserving the core functions of domicile.

A Taking by Another Name: Challenging Historic Preservation After Cedar Point

Matthew H. Winesett

In the 1922 case Pennsylvania Coal v. Mahon, Justice Holmes proclaimed that regulations going “too far” constituted takings under the Fifth Amendment. But over a century later, courts rarely find a land-use restriction they think fits this description. This is largely due to Penn Central Transportation Company v. City of New York, the Supreme Court’s “landmark case about landmarks” establishing the judiciary’s highly permissive stance toward historic preservation laws. Though initially employed to save beloved structures from destruction, preservation ordinances have proliferated to prevent the redevelopment of tens of thousands of buildings, worsening the country’s housing shortage.

Fortunately, there are signs that the Roberts Court is open to correcting course. In the 2021 case Cedar Point Nursery v. Hassid, the Court reinterpreted two well-established precedents governing takings challenges to favor property owners over regulators. Though so far cabined to “physical” takings, Cedar Point may signal the Court’s appetite for takings challenges to historic preservation laws as well.

Part I of this Note discusses the history of preservation in the United States and the Supreme Court’s deferential takings jurisprudence regarding such regulations. Part II explores the costs of this deference, both to individual property owners and society at large. Part III analyzes Cedar Point in light of the Court’s underused but still-extant line of property-protecting precedents to suggest that the Court’s deference to historic preservation laws may soon change. Part IV then offers several avenues that courts could take in the wake of Cedar Point to declare abusive historic preservation practices as takings necessitating compensation, and thereby clarify Takings Clause doctrine in the process.