Religious Liberty

5 posts

A Necessary Recalibration: Why the Ministerial Exception’s Bar on Whistleblower Actions Harms Teachers and Students

By Christopher Morillo

The “ministerial exception” is a First Amendment shield for religious institutions facing employment-related lawsuits.  The Catholic Church, for example, might invoke the exception if sued by a woman barred from joining the priesthood on account of her sex.  In recent years, however, the Supreme Court has “vertically” expanded the scope of the exception down the hierarchy of a religious institution, holding that it bars actions brought not only by traditional “ministers,” but also by teachers and other employees at religious schools—many of whom do not hold religious office or formally preach to students.  This Note argues that this vertical expansion (i.e., the broadened conception of “minister”) warrants a “horizontal” restriction on the types of claims that the exception bars.  Namely, whistleblower actions should not be categorically barred by the now-bloated ministerial exception.  As the law stands, over a hundred thousand secular teachers are left in a precarious double bind in which they must act as mandatory reporters for child abuse and yet lack protection from any consequent retaliation for whistleblowing.

Part I of this Note provides an overview of the ministerial exception and its recent expansion, including how lower courts have been handling whistleblower claims.  Part II theorizes that the broadening of the ministerial exception, and the underlying First Amendment right of church autonomy, should trigger a proportionality approach that constrains the exception based on competing government interests.  Part III applies this proportionality approach in the context of whistleblower cases, arguing that whistleblower actions are distinct from other applications of the ministerial exception in the way they implicate third parties—often children—and with respect to the unique societal interests in protecting those third parties.

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Closely Held Conscience: Corporate Personhood in the Post–Hobby Lobby World

By Sean Nadel

This Note seeks to reframe scholarly criticism of Hobby Lobby by evaluating the case in the context of the evolving doctrine of corporate personhood and, specifically, the Obama Administration’s recent regulations that cabin the decision by implementing a new federal definition of “closely held corporations.” This Note suggests that, although problematic in certain regards, Hobby Lobby does not represent the return of Lochner. Indeed, the innovation of Hobby Lobby is not its interpretation of RFRA or the Free Exercise clause, but rather its extension of standing under RFRA to corporate parties. Accordingly, the concerns over Hobby Lobby are better articulated in the realm of corporate personhood rather than in the debate surrounding the First Amendment, making a focus on “Free Exercise Lochnerism” an ill-fitting mode of analysis. Moreover, by examining the progressive response to Hobby Lobby, epitomized by the resulting Department of Health and Human Services (HHS) regulations, the advantages of viewing the decision in terms of corporate personhood will become apparent. Part II of this Note examines the events precipitating Hobby Lobby, the decision in Hobby Lobby itself, and the debate surrounding and subsequent implementation of the resulting HHS regulations, which set the most comprehensive federal definition to date of closely held corporations. Part III critiques the HHS regulations by pointing to several problems, which both undermine the efficacy and goals of the regulation itself and pose precedential issues for the treatment of corporations in other contexts. Particularly, Part III comments that the post–Hobby Lobby effort to protect reproductive rights has undermined Hobby Lobby’s powerful language about corporate personhood, which could be used to advance corporate social responsibility, a key move for many progressive causes like environmentalism and workers’ rights. Part IV suggests an alternative to the current regulations that relies on the internal sincerity-testing model of RFRA, which evaluates whether the belief professed by plaintiff is authentic; this could prove to be less problematic than the current regime.

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Guardians as Gatekeepers and Other Issues of the Establishment Clause and Parole

By Daniel W. Sack

The United States is relatively unique compared to other countries in two particular areas: how religious its citizens profess to be and how many of its citizens are incarcerated. This Note examines how these two characteristics interact in the parole context with an emphasis on the role of the chaplaincy in such proceedings. Federal courts have wrestled — relatively inconclusively — with where to draw the line between permissible and coercive consideration of religious attributes in the parole setting. Giving religious factors too much weight could potentially pressure inmates into adopting insincere religious habits in the hopes of obtaining favorable treatment; conversely, too little weight could fail to recognize the secular attributes of religious participation that often lend themselves toward rehabilitation. This Note suggests that limited inquiry by parole boards into the structural- or community-based (as opposed to philosophical- or tenet-based) components of an inmate’s religion may be appropriate. So too may be the parole board’s acceptance of a letter of reference from a prison chaplain. Conversely, this Note argues that prison chaplains overstep their bounds and violate the Establishment Clause when they serve on parole boards by putting a coercive force on inmates to become religious or follow a certain religion. This Note ultimately strives to flesh out the complicated and varied ways in which inmates’ freedoms of and from religion intersect with their attempts to obtain freedom through parole.

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Harris Funeral Homes: A Proposed Tool for Claiming Trans Rights that is Dead on Arrival

By Joe Sullivan

In June 2020, the Supreme Court extended protections under Title VII of the Civil Rights Act to LGBTQ Americans in Bostock v. Clayton County, Georgia. This historic decision presents the LGBTQ community with the opportunity to claim rights under a wide range of laws. This Note will consider implications of the Supreme Court’s recent ruling in Bostock on future challenges to transgender health care discrimination by employers. Defining “sex” as including “sexual orientation” has the potential to make great progress towards ending trans health care discrimination. The Religious Freedom Restoration Act (RFRA), however, stands in the way as a formidable obstacle. RFRA allows corporations to engage in conduct that would otherwise be unlawful, if those laws conflict with their religious beliefs. Unless those laws further a compelling state interest in the least restrictive manner, RFRA provides a loophole. Closely held religious corporations are still able to employ a RFRA-based defense against Title VII claims, narrowing the scope of Title VII rights.

In Part I, this Note provides a background of the current state of trans health care coverage denial in the United States and notes the inherent conflicts between RFRA and Title VII. In Part II, it provides an explanation of the three cases which were consolidated by the Court in Bostock. Part III then analyzes Bostock’s majority opinion and Justice Alito’s dissent to highlight the uncertainty left in the wake of Bostock. Next, Part IV examines scholars’ optimism that Harris Funeral Homes is a guide for claiming future LGBTQ rights. Finally, Part V argues instead that Harris Funeral Homes is a weak tool to use for future litigation, concluding that a legislative solution can best secure trans health care rights.

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“Religious” Secularism and Legitimacy in American Democracy

By 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.

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