Caroline M. Corbin
- Courses4
- Reviews8
- School: University of Miami School of Law
- Campus:
- Department: Law
- Email address: Join to see
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Location:
1311 Miller Rd
Coral Gables, FL - 33146 - Dates at University of Miami School of Law: August 2013 - June 2020
- Office Hours: Join to see
N/A
Would take again: Yes
For Credit: Yes
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Awesome
I took Professor Corbin's class on Constitutional Law 2, in the fall semester of 2L year. Her teaching style will allow you to write better exams, for the rest of your law school journey. Currently, I'm in bar exam preparation. Thanks to her, the Constitutional Law MBE section, is relatively easy. She's one of the three best professors at University of Miami School of Law. She's probably the best professor overall.
Biography
University of Miami School of Law - Law
Experience
Columbia Law School
Research Fellow
Caroline worked at Columbia Law School as a Research Fellow
ACLU
Attorney
Caroline worked at ACLU as a Attorney
University of Miami School of Law
Associate Professor of Law
Caroline worked at University of Miami School of Law as a Associate Professor of Law
University of Miami School of Law
Professor of Law
Caroline worked at University of Miami School of Law as a Professor of Law
Sullivan & Cromwell
Pro Bono Fellow & Litigation Associate
Caroline worked at Sullivan & Cromwell as a Pro Bono Fellow & Litigation Associate
U.S. Court of Appeals
Judicial Clerk
Hon. M. Blane Michael, U.S. Court of Appeals for the Fourth Circuit
Education
Columbia Law School
J.D.
Columbia Law School
Research Fellow
Harvard University
B.A.
English and Art History
Publications
Government Employee Religion
Arizona State Law Journal
Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other.
Government Employee Religion
Arizona State Law Journal
Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other.
Speech or Conduct: The Free Speech Claims of Wedding Vendors
Emory Law Journal, Vol. 65,
As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny? Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.
Government Employee Religion
Arizona State Law Journal
Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other.
Speech or Conduct: The Free Speech Claims of Wedding Vendors
Emory Law Journal, Vol. 65,
As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny? Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.
Abortion Distortions
Washington & Lee Law Review
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not. The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
Government Employee Religion
Arizona State Law Journal
Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other.
Speech or Conduct: The Free Speech Claims of Wedding Vendors
Emory Law Journal, Vol. 65,
As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny? Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.
Abortion Distortions
Washington & Lee Law Review
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not. The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
Compelled Disclosures
Alabama Law Review
Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that court decisions often have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.
Government Employee Religion
Arizona State Law Journal
Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other.
Speech or Conduct: The Free Speech Claims of Wedding Vendors
Emory Law Journal, Vol. 65,
As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny? Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.
Abortion Distortions
Washington & Lee Law Review
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not. The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
Compelled Disclosures
Alabama Law Review
Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that court decisions often have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.
'Terrorists Are Always Muslim But Never White': At the Intersection of Critical Race Theory and Propaganda
Fordham Law Review
When you hear the word “terrorist,” who do you picture? Chances are, it was not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump Administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of the “Muslim terrorist.” Another strand focuses on white privilege, such as the privilege of avoiding the terrorist label. These false narratives play a crucial role in Trump’s propaganda. As the critical race analysis uncovers, these two narratives dovetail with two constituent parts of propaganda: flawed ideologies and aspirational myths. Propaganda relies on pre-existing false ideologies, which is another way to describe racist stereotyping. Propaganda also relies on certain ideals and myths, in this case, the myth of white innocence and white superiority. Thus, the Trump Administration’s intentional invocation of both narratives amounts to propaganda in more than just the colloquial sense. Part I illustrates each of the two narratives. Part II analyzes them through a critical race lens, showing how they map onto two strands of critical race theory. Part III examines how these narratives simultaneously enable and comprise propaganda. Finally, Part IV argues that the propagation of these false narratives hurts the nation’s security.
Government Employee Religion
Arizona State Law Journal
Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other.
Speech or Conduct: The Free Speech Claims of Wedding Vendors
Emory Law Journal, Vol. 65,
As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny? Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.
Abortion Distortions
Washington & Lee Law Review
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not. The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
Compelled Disclosures
Alabama Law Review
Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that court decisions often have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.
'Terrorists Are Always Muslim But Never White': At the Intersection of Critical Race Theory and Propaganda
Fordham Law Review
When you hear the word “terrorist,” who do you picture? Chances are, it was not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump Administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of the “Muslim terrorist.” Another strand focuses on white privilege, such as the privilege of avoiding the terrorist label. These false narratives play a crucial role in Trump’s propaganda. As the critical race analysis uncovers, these two narratives dovetail with two constituent parts of propaganda: flawed ideologies and aspirational myths. Propaganda relies on pre-existing false ideologies, which is another way to describe racist stereotyping. Propaganda also relies on certain ideals and myths, in this case, the myth of white innocence and white superiority. Thus, the Trump Administration’s intentional invocation of both narratives amounts to propaganda in more than just the colloquial sense. Part I illustrates each of the two narratives. Part II analyzes them through a critical race lens, showing how they map onto two strands of critical race theory. Part III examines how these narratives simultaneously enable and comprise propaganda. Finally, Part IV argues that the propagation of these false narratives hurts the nation’s security.
Corporate Religious Liberty
Constitutional Commentary
Do for-profit corporations have a right to religious liberty? This question was before the Supreme Court for the first time in a challenge to the Affordable Care Act’s “contraception mandate.” According to Burwell v. Hobby Lobby Stores, Inc., the answer is yes: for-profit corporations are “persons” entitled to religious exemptions under the Religious Freedom Restoration Act. This Article argues that there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for religious associations such as churches. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.
Government Employee Religion
Arizona State Law Journal
Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other.
Speech or Conduct: The Free Speech Claims of Wedding Vendors
Emory Law Journal, Vol. 65,
As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny? Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.
Abortion Distortions
Washington & Lee Law Review
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not. The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
Compelled Disclosures
Alabama Law Review
Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that court decisions often have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.
'Terrorists Are Always Muslim But Never White': At the Intersection of Critical Race Theory and Propaganda
Fordham Law Review
When you hear the word “terrorist,” who do you picture? Chances are, it was not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump Administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of the “Muslim terrorist.” Another strand focuses on white privilege, such as the privilege of avoiding the terrorist label. These false narratives play a crucial role in Trump’s propaganda. As the critical race analysis uncovers, these two narratives dovetail with two constituent parts of propaganda: flawed ideologies and aspirational myths. Propaganda relies on pre-existing false ideologies, which is another way to describe racist stereotyping. Propaganda also relies on certain ideals and myths, in this case, the myth of white innocence and white superiority. Thus, the Trump Administration’s intentional invocation of both narratives amounts to propaganda in more than just the colloquial sense. Part I illustrates each of the two narratives. Part II analyzes them through a critical race lens, showing how they map onto two strands of critical race theory. Part III examines how these narratives simultaneously enable and comprise propaganda. Finally, Part IV argues that the propagation of these false narratives hurts the nation’s security.
Corporate Religious Liberty
Constitutional Commentary
Do for-profit corporations have a right to religious liberty? This question was before the Supreme Court for the first time in a challenge to the Affordable Care Act’s “contraception mandate.” According to Burwell v. Hobby Lobby Stores, Inc., the answer is yes: for-profit corporations are “persons” entitled to religious exemptions under the Religious Freedom Restoration Act. This Article argues that there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for religious associations such as churches. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.
The Contraception Mandate
Northwestern Law Review
Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the “contraception mandate” violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This essay explains why the contraception mandate violates none of them.
Government Employee Religion
Arizona State Law Journal
Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other.
Speech or Conduct: The Free Speech Claims of Wedding Vendors
Emory Law Journal, Vol. 65,
As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny? Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.
Abortion Distortions
Washington & Lee Law Review
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not. The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
Compelled Disclosures
Alabama Law Review
Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that court decisions often have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.
'Terrorists Are Always Muslim But Never White': At the Intersection of Critical Race Theory and Propaganda
Fordham Law Review
When you hear the word “terrorist,” who do you picture? Chances are, it was not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump Administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of the “Muslim terrorist.” Another strand focuses on white privilege, such as the privilege of avoiding the terrorist label. These false narratives play a crucial role in Trump’s propaganda. As the critical race analysis uncovers, these two narratives dovetail with two constituent parts of propaganda: flawed ideologies and aspirational myths. Propaganda relies on pre-existing false ideologies, which is another way to describe racist stereotyping. Propaganda also relies on certain ideals and myths, in this case, the myth of white innocence and white superiority. Thus, the Trump Administration’s intentional invocation of both narratives amounts to propaganda in more than just the colloquial sense. Part I illustrates each of the two narratives. Part II analyzes them through a critical race lens, showing how they map onto two strands of critical race theory. Part III examines how these narratives simultaneously enable and comprise propaganda. Finally, Part IV argues that the propagation of these false narratives hurts the nation’s security.
Corporate Religious Liberty
Constitutional Commentary
Do for-profit corporations have a right to religious liberty? This question was before the Supreme Court for the first time in a challenge to the Affordable Care Act’s “contraception mandate.” According to Burwell v. Hobby Lobby Stores, Inc., the answer is yes: for-profit corporations are “persons” entitled to religious exemptions under the Religious Freedom Restoration Act. This Article argues that there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for religious associations such as churches. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.
The Contraception Mandate
Northwestern Law Review
Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the “contraception mandate” violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This essay explains why the contraception mandate violates none of them.
Justice Scalia, the Establishment Clause, and Christian Privilege
First Amendment Law Review
Justice Scalia had an unusual view of the Establishment Clause. According to Justice Scalia, the principle that the government can never favor one religion over another is “demonstrably false.” He maintained that given the history and traditions of this country, the government could, consistent with the Constitution, express a preference for Christianity (or perhaps Judeo-Christianity) by, for example, “honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.” Indeed, Justice Scalia thought that the government’s failure to do so expressed hostility to religion. This symposium Essay argues that Justice Scalia’s view of the Establishment Clause exemplifies Christian privilege. It identifies three key insights from critical race studies and its analysis of white privilege: (1) whites enjoy certain unearned privileges, including the fact that whiteness is the unstated racial norm; (2) these privileges are often invisible to those who possess them, and (3) the loss of this privileged position is often experienced as hostility. These insights are then mapped onto Justice Scalia’s Establishment Clause jurisprudence as well as his originalist theory of constitutional interpretation more generally.
Government Employee Religion
Arizona State Law Journal
Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other.
Speech or Conduct: The Free Speech Claims of Wedding Vendors
Emory Law Journal, Vol. 65,
As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny? Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.
Abortion Distortions
Washington & Lee Law Review
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not. The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
Compelled Disclosures
Alabama Law Review
Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that court decisions often have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.
'Terrorists Are Always Muslim But Never White': At the Intersection of Critical Race Theory and Propaganda
Fordham Law Review
When you hear the word “terrorist,” who do you picture? Chances are, it was not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump Administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of the “Muslim terrorist.” Another strand focuses on white privilege, such as the privilege of avoiding the terrorist label. These false narratives play a crucial role in Trump’s propaganda. As the critical race analysis uncovers, these two narratives dovetail with two constituent parts of propaganda: flawed ideologies and aspirational myths. Propaganda relies on pre-existing false ideologies, which is another way to describe racist stereotyping. Propaganda also relies on certain ideals and myths, in this case, the myth of white innocence and white superiority. Thus, the Trump Administration’s intentional invocation of both narratives amounts to propaganda in more than just the colloquial sense. Part I illustrates each of the two narratives. Part II analyzes them through a critical race lens, showing how they map onto two strands of critical race theory. Part III examines how these narratives simultaneously enable and comprise propaganda. Finally, Part IV argues that the propagation of these false narratives hurts the nation’s security.
Corporate Religious Liberty
Constitutional Commentary
Do for-profit corporations have a right to religious liberty? This question was before the Supreme Court for the first time in a challenge to the Affordable Care Act’s “contraception mandate.” According to Burwell v. Hobby Lobby Stores, Inc., the answer is yes: for-profit corporations are “persons” entitled to religious exemptions under the Religious Freedom Restoration Act. This Article argues that there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for religious associations such as churches. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.
The Contraception Mandate
Northwestern Law Review
Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the “contraception mandate” violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This essay explains why the contraception mandate violates none of them.
Justice Scalia, the Establishment Clause, and Christian Privilege
First Amendment Law Review
Justice Scalia had an unusual view of the Establishment Clause. According to Justice Scalia, the principle that the government can never favor one religion over another is “demonstrably false.” He maintained that given the history and traditions of this country, the government could, consistent with the Constitution, express a preference for Christianity (or perhaps Judeo-Christianity) by, for example, “honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.” Indeed, Justice Scalia thought that the government’s failure to do so expressed hostility to religion. This symposium Essay argues that Justice Scalia’s view of the Establishment Clause exemplifies Christian privilege. It identifies three key insights from critical race studies and its analysis of white privilege: (1) whites enjoy certain unearned privileges, including the fact that whiteness is the unstated racial norm; (2) these privileges are often invisible to those who possess them, and (3) the loss of this privileged position is often experienced as hostility. These insights are then mapped onto Justice Scalia’s Establishment Clause jurisprudence as well as his originalist theory of constitutional interpretation more generally.
Intentional Discrimination in Establishment Clause Jurisprudence
Alabama Law Review
In Town of Greece v. Galloway, the Supreme Court upheld a legislative prayer practice with overwhelmingly Christian prayers in part because the Court concluded that the exclusion of all other religions was unintentional. This requirement — that a religiously disparate impact must be intentional before it amounts to an establishment violation — is new for Establishment Clause doctrine. An intent requirement, however, is not new for equal protection or free exercise claims. This Essay explores the increased symmetry between the Establishment Clause, the Equal Protection Clause, and the Free Exercise Clause. It argues that many of the critiques of the intentional discrimination standard made in the equal protection context apply in the establishment context. It also argues that free exercise and establishment jurisprudence still differ substantially despite their superficial symmetry.
Government Employee Religion
Arizona State Law Journal
Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses. There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine. Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other.
Speech or Conduct: The Free Speech Claims of Wedding Vendors
Emory Law Journal, Vol. 65,
As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny? Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.
Abortion Distortions
Washington & Lee Law Review
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not. The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
Compelled Disclosures
Alabama Law Review
Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that court decisions often have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.
'Terrorists Are Always Muslim But Never White': At the Intersection of Critical Race Theory and Propaganda
Fordham Law Review
When you hear the word “terrorist,” who do you picture? Chances are, it was not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump Administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of the “Muslim terrorist.” Another strand focuses on white privilege, such as the privilege of avoiding the terrorist label. These false narratives play a crucial role in Trump’s propaganda. As the critical race analysis uncovers, these two narratives dovetail with two constituent parts of propaganda: flawed ideologies and aspirational myths. Propaganda relies on pre-existing false ideologies, which is another way to describe racist stereotyping. Propaganda also relies on certain ideals and myths, in this case, the myth of white innocence and white superiority. Thus, the Trump Administration’s intentional invocation of both narratives amounts to propaganda in more than just the colloquial sense. Part I illustrates each of the two narratives. Part II analyzes them through a critical race lens, showing how they map onto two strands of critical race theory. Part III examines how these narratives simultaneously enable and comprise propaganda. Finally, Part IV argues that the propagation of these false narratives hurts the nation’s security.
Corporate Religious Liberty
Constitutional Commentary
Do for-profit corporations have a right to religious liberty? This question was before the Supreme Court for the first time in a challenge to the Affordable Care Act’s “contraception mandate.” According to Burwell v. Hobby Lobby Stores, Inc., the answer is yes: for-profit corporations are “persons” entitled to religious exemptions under the Religious Freedom Restoration Act. This Article argues that there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for religious associations such as churches. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.
The Contraception Mandate
Northwestern Law Review
Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the “contraception mandate” violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This essay explains why the contraception mandate violates none of them.
Justice Scalia, the Establishment Clause, and Christian Privilege
First Amendment Law Review
Justice Scalia had an unusual view of the Establishment Clause. According to Justice Scalia, the principle that the government can never favor one religion over another is “demonstrably false.” He maintained that given the history and traditions of this country, the government could, consistent with the Constitution, express a preference for Christianity (or perhaps Judeo-Christianity) by, for example, “honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.” Indeed, Justice Scalia thought that the government’s failure to do so expressed hostility to religion. This symposium Essay argues that Justice Scalia’s view of the Establishment Clause exemplifies Christian privilege. It identifies three key insights from critical race studies and its analysis of white privilege: (1) whites enjoy certain unearned privileges, including the fact that whiteness is the unstated racial norm; (2) these privileges are often invisible to those who possess them, and (3) the loss of this privileged position is often experienced as hostility. These insights are then mapped onto Justice Scalia’s Establishment Clause jurisprudence as well as his originalist theory of constitutional interpretation more generally.
Intentional Discrimination in Establishment Clause Jurisprudence
Alabama Law Review
In Town of Greece v. Galloway, the Supreme Court upheld a legislative prayer practice with overwhelmingly Christian prayers in part because the Court concluded that the exclusion of all other religions was unintentional. This requirement — that a religiously disparate impact must be intentional before it amounts to an establishment violation — is new for Establishment Clause doctrine. An intent requirement, however, is not new for equal protection or free exercise claims. This Essay explores the increased symmetry between the Establishment Clause, the Equal Protection Clause, and the Free Exercise Clause. It argues that many of the critiques of the intentional discrimination standard made in the equal protection context apply in the establishment context. It also argues that free exercise and establishment jurisprudence still differ substantially despite their superficial symmetry.
A Free Speech Tale of Two County Clerk Refusals
Ohio State Law Journal
The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them speak in favor of same-sex marriage in violation of the Free Speech Clause. When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking as the government. This governmental component affects each side of the speech versus equality analysis. First, the Free Speech Clause interests in speech are weaker (sometimes to the point of extinguishment) when the speech is not purely private. Second, to the extent the government employee’s conduct is the government’s, then it amounts to state action, and the Equal Protection Clause is triggered. Part I addresses the free speech claims of a county clerk who is terminated after she informs a same-sex couple that by reason of her beliefs, she cannot grant them a marriage license. The outcome here is straightforward: she loses. Because her refusal will be treated as the government’s own, her individual free speech interests are at their lowest while the government’s equal protection interests are at their highest. Part II addresses the free speech claims of a clerk who has found a coworker willing to cover for her, but her supervisor declines to accommodate her and instead fires her for refusing to do her job. The analysis here is more complicated, as it raises questions about expressive conduct, official duties, and expressive harms.
