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INTRODUCTION 1116 I. THE BACKDROP OF TRANSGENDER EQUALITY PROTECTIONS 1121 A. Transgender-Inclusive State and Local Anti-Discrimination Laws 1122 B. Sex Discrimination Law 1124 C. Fourteenth Amendment Equal Protection Doctrine 1127 [...], Over the course of the last three decades, gender identity antidiscrimination protections and other transgender-supportive government policies have increased, as government entities have sought to protect and support the transgender community. But constitutional litigation by opponents of transgender equality has also proliferated, seeking to limit or eliminate such trans-protective measures. Such litigation has attacked as unconstitutional everything from laws prohibiting anti-transgender employment discrimination to the efforts of individual public school teachers to support transgender teens. This Article provides the first systematic account of the phenomenon of anti-transgender constitutional litigation. As described herein, such litigation is surprisingly novel: while trans-protective measures date back much further, anti-transgender constitutional litigation was virtually nonexistent prior to 2016. Moreover, as late as 2018, the few victories in such cases were almost always either temporary or predicated on arguments with only limited application. In contrast, the most recent wave of anti-transgender constitutional litigation has seen increasing success in invalidating or limiting transgender equality measures, based on increasingly broad and potentially impactful rationales. These findings raise significant questions, both for the transgender community and for those who care about broader anti-discrimination law. They suggest that even at a time when the transgender community is achieving important gains, the constitutional claims of transgender equality opponents are simultaneously eroding these gains. Moreover, the reasoning in some of the recent rulings in anti-transgender constitutional cases ought to be of substantial concern to all groups protected by anti-discrimination law. Indeed, the rulings in some anti-transgender constitutional law cases provide a troubling vision of what the future of speech- and religion-based claims could portend. Emboldened by the recent victories, litigants have become increasingly aggressive--and lower courts increasingly creative--in arguing for the constitutional limitation of equality rights. While such arguments have been adopted by only a limited number of courts to date, they could--if adopted more widely--form the basis for the constitutional limitation or invalidation of broad swaths of modern anti-discrimination law.

As Jamal Greene has observed, American constitutional law--with its absolutist approach to rights--is poorly situated to mediating rights conflicts like the ongoing conflict between speech/religion and equality rights. (341) Rights [...]

Table of Contents Introduction I. The Legal Landscape A. The Emergence of State RFRAs B. Post-Dobbs Abortion Bans 1. Kentucky 2. Indiana 3. Florida C. Abortion Bans Create Major Conflicts [...], After Dobbs, religion, commonly seen as an argument against abortion, has been used to argue for the right to choose. In July 2022, a synagogue sued Florida, asserting that its ban on abortion after fifteen weeks violated Article 1, Section 3 of the Florida Constitution, which prohibits the penalization of free expression of religion. In September 2022, the ACLU argued that the state's abortion ban violated Indiana's Religious Freedom Restoration Act. And in October 2022, three Jewish women sued the state of Kentucky, alleging that its abortion ban violated the Kentucky Religious Freedom Restoration Act. This Note provides a guide to the merits and challenges of the argument that an abortion ban violates a state Religious Freedom Restoration Act (RFRA). Although this Note focuses on how Jewish plaintiffs can raise such claims, the arguments outlined could be raised by individuals of multiple faiths. This Note contributes to a growing debate about religious arguments for the right to an abortion. And it is the first paper to outline how religious freedom claims to obtaining an abortion might fare under state RFRAs. The approach to RFRA outlined in this paper lays the groundwork for a rights- advancing framework of religious exercise.

I. INTRODUCTION 941 II. DEVELOPMENTS IN RELIGIOUS EXEMPTIONS 942 III. THE MINISTERIAL EXCEPTION 944 A. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL V. 945 EEOC B. EEOC V. R.G. & G.R. [...]

INTRODUCTION 1001 I. THE SINCERITY "REQUIREMENT" 1007 A. Sincerity and the Conscientious Objector Cases 1008 B. Sincerity and Strict Scrutiny 1011 1. Sherbert and Yoder 1011 2. Thomas 1012 3. [...], Religion today offers plaintiffs a ready path to disobey laws without consequence. Examples of such disobedience abound. In the past few years alone, courts have enjoined vaccine mandates, invalidated stay-at-home orders, and set aside antidiscrimination laws protecting same-sex couples. During the 2021-2022 Term, plaintiffs relied once again on free exercise to subvert laws governing public education, capital punishment, and school prayer. Some hospitals have begun denying fertility treatment to LGBTQ employees on this same basis. How did religion become a skeleton key for lawbreaking without repercussion? The conventional wisdom is that, after decades of neglect, the Supreme Court finally began to take seriously the government's burden in free exercise cases. When the Court now says that the government must prove its laws serve compelling interests and are narrowly tailored, it actually means it. But that is just part of the story. Courts are not only making the government's job harder. They are also making the plaintiff's job easier. Before courts apply strict scrutiny, plaintiffs must show that their religious practices are sincere. Courts and scholars point to sincerity as serving an all-important gatekeeping function: letting in claims of genuine religious exercise and keeping out non-meritorious requests for accommodation. Yet sincerity is in practice an empty requirement. A systematic review of nearly 350 federal appellate cases--the first such analysis of its kind--reveals that the Supreme Court has never, in the past thirty years, found a single plaintiff to be insincere. Federal appellate courts, likewise, have found plaintiffs sincere 93% of the time (compare that to employment discrimination and ADA cases, where plaintiffs carry their burden just 27% and 60% of the time, respectively). And who is insincere? Pro se plaintiffs. Per the data, parties proceeding pro se are almost 800% more likely to be found insincere than someone with counsel. The only population without a license for disobedience, it turns out, is the already marginalized. These shortcomings matter. Without appropriate tools to discern genuine religious practice from opportunistic litigation, free exercise becomes an open invitation to true believers and make-believers alike to break the law. With religious exemptions becoming an increasingly visible part of state, federal, and international law, that comes with clear costs: to the rule of law, to the credibility of true believers, and to the public. To prevent religion as disobedience from running amok, it is time to start taking sincerity seriously.

INTRODUCTION The issue of prisoners' free exercise of religion in the execution chamber has developed through both congressional statutes and case law. The Supreme Court will again address prisoners' religious [...], A prisoner's right to free exercise of religion within the execution chamber has been considered across time through both legislative and judicial action. The Supreme Court will take up the issue again in Ramirez v. Collier. Ramirez, a prisoner awaiting execution, argues that his execution must be stayed because Texas' policy of prohibiting religious advisors from touching prisoners in their final moments or speaking aloud in the execution chamber violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) as well as the First Amendment right to freedom of religion. This Note provides a historical analysis of the Supreme Court's prior interpretations of cases concerning RLUIPA, including the Court's most recent decision in Dunn v. Smith. Moreover, the Author argues that Texas' current policies concerning religious advisors in execution chambers violate RLUIPA and thus, Ramirez's execution must be stayed. Ultimately, this Note argues that while Texas does have a compelling state interest in maintaining the security of prisons, the prohibitions placed on the conduct of religious leaders in execution chambers is not the least restrictive means of achieving that interest and as a result it constitutes a substantial burden on inmates' ability to practice sincerely held religious beliefs.

INTRODUCTION 540 I. BACKGROUND: WHAT'S THE BIG DEAL ABOUT RELIGION? 544 A. Free Exercise Jurisprudence: A Brief Look 547 B. Smith versus The Religious Freedom Restoration Act: The Current Free [...]

INTRODUCTION 678 1. HARBORING AND RELATED OFFENSES IN THE UNITED STATES 682 A. Criminal Liability for Harboring and Littering 683 B. Potential Limits to Criminal Liability 688 1. Overbreadth with [...], The United States has long criminalized assistance to unauthorized migrants. It is a crime to smuggle, transport, harbor, or encourage unauthorized migrants to remain in the country, regardless of the reasons for such aid. In response to recent federal harboring prosecutions of humanitarians assisting migrants at the U.S.-Mexico border, scholars and advocates have shown tremendous interest in a defense to liability under the Religious Freedom Restoration Act and the First Amendment's Free Speech Clause. But a comparative analysis of harboring law reveals that some foreign jurisdictions conceptualize harboring law and defenses to liability in terms of citizen-migrant associations rather than religious freedom or freedom of speech. This Article argues that conceptualizing harboring law in the United States in terms of the freedom of association, like these foreign jurisdictions, would pay off in three ways: First, it would improve the descriptive accuracy of the stakes in harboring prosecutions; providing water, food, and shelter to other people amounts to association more clearly than it does an expression of religious belief or a political view. Second, it would provide an opportunity to rework aspects of associational jurisprudence by potentially extending the category of protected "intimate" associations to include activities of care outside of the family. Finally, focusing on association brings the relationships between citizens and migrants to the fore, which in turn stands to improve the visibility and stature of migrants in the law.

I. INTRODUCTION 265 II. PRESCRIPTION BIRTH CONTROL AND EMERGENCY CONTRACEPTION: A HISTORY 266 A. TYPES OF CONTRACEPTION DEFINED 266 B. THE RIGHT TO ACCESS TO CONTRACEPTION 270 C THE PATIENT [...]

I. Introduction. 733 II. Developments in Religious Exemptions. 734 III. The Ministerial Exception 736 A. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC 736 B. EEOC V. R.G. & G.R. [...]

It is my honor to speak at this conference, which has reflected so wonderfully on the theology and life of Saint John Paul the Great. I am by no means [...]

I. INTRODUCTION In March 2006, federal agents raided a Native American powwow in Texas, confronted religious dancers, and confiscated 42 sacred eagle feathers. Pastor Robert Soto, a leader of the [...]

I do not use the term "absurd" in this title lightly. Judge Marsha Berzon used it in a dissenting opinion to describe the impractical result that comes from repeating the [...]

INTRODUCTION 149 I. THE FAIRNESS DEBATE 156 A. The Question 156 B. Existing Answers 159 C. Limitations 162 II. STEPPING BACK: THE WHAT AND WHY OF OUR CIVIL LIBERTIES 164 [...], Is it fair to grant exemptions from neutral laws to protect religion but not other deep commitments and pursuits, like secular conscience or care-giving bonds? The thirty-year scholarly debate on this question now has legal import, as the Supreme Court stands poised to reverse precedent and restore free exercise exemptions from neutral laws. Whether it should, under stare decisis, turns partly on moral considerations like the fairness issue. And the fairness debate is worth revisiting. Almost everyone has assumed that special religious protections are fair only if religion matters more than other interests. Yet protections for religion might be warranted not because religion is more important, but because it is more needful of protection. To see if these special protections are indeed fair and necessary, this Article develops a measure of need, based on how all civil liberties work in our system. Our doctrines on speech, abortion (for decades), gun rights, and travel have imposed heightened scrutiny on laws that deny us one means of exercising a liberty without leaving adequate alternatives--i.e., other ways to realize the interests served by that liberty to the same degree and at no greater cost. Thus, an interest will have greater need for this protection, the more that laws burdening some means to it will leave no adequate alternative means--or the more "fragile" the interest is. And even if an interest is fragile (because burdens on it are often too heavy), it will not need protection if it rarely faces burdens, heavy or not--if it is not "exposed." These two concepts create a framework for assessing all our liberties and limiting their scope. So far, the fairness debate has produced almost no evidence that key secular interests need adequate-alternatives protection--that they're fragile or exposed. By contrast, the interests served by religion are quite often fragile. Their pursuit must be funneled into the narrow range of behaviors dictated by a believer's particular creed. And her creed is what it is. She cannot change it just to get around the law. If a law makes it hard for her to live as a Muslim, she cannot make up for that by living as a Mennonite. Religious demands can also be more particular or picky than other life-shaping commitments. Thus religion's fragility: removing options often leaves no adequate alternatives. This Article sketches several ways, rooted in different disciplines, to see if the same is true of crucial secular interests--to see if they have as much need for protection, or if religion is more needful and so fair to single out. On this, the Article seeks not to settle the fairness debate but to steer it onto crucial overlooked questions.

INTRODUCTION 339 I. THAYERISM, GOBITIS, AND JUDICIAL DEFERENCE 342 A. Thayer's Theory: "Whatever Choice Is Rational Is Constitutional.". 343 B. Thayerism in Plessy, Buck, and Korematsu 345 C. Thayerism in [...], 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 in the first flag salute case, Minersville School District v. Gobitis. That approach was short-lived, as Gobitis was swiftly overruled in West Virginia State Board of Education v. Barnette. Rather than deferring to political actors, Barnette treated the Constitution as placing certain rights "beyond the reach of majorities" and establishing them as "legal principles" that must be "applied by the courts. " Barnette's approach to rights--rejecting a Thayerian "duly of deference" for First Amendment rights--has largely triumphed, even in other individual rights contexts. But a curious anomaly persists. Unlike in other areas of the law, the discredited Thayerian approach to the First Amendment from Gobitis was eventually adopted into the modern free exercise standard embraced by the Supreme Court in Employment Division v. Smith. As a result, many free exercise claims have been decided with precisely the kind of rational basis deference we long ago abandoned for other constitutional rights. This Article examines the relationship between religious liberty claims and Thayerian judicial deference. With the Supreme Court poised to reconsider Smith, this focus on deference differs from the standard scholarly and judicial approach, which tends to emphasize the debate over religious exemptions. Focusing instead on deference shows how Smith is an outlier, out of step not only with prior religious liberty cases but also with our broader approach to the enforcement of constitutional rights. Likewise, when religious liberty is viewed through the lens of deference, it becomes clear that, even without overruling Smith, the Supreme Court has been moving away from Thayerian judicial deference across a wide range of religious liberty disputes over the past decade. These deference-rejecting decisions cast the Religion Clauses as the "the heart of our pluralistic society, " that help "foster a society in which people of all beliefs can live together in harmony. " Those high goals are only attainable if religious liberty consists of judicially enforceable rights, rather than occasions for deference to the majoritarian governments that the Bill of Rights is supposed to constrain.

34TH ANNUAL INDIAN LAW SYMPOSIUM RESTATEMENT OF THE LAW OF AMERICAN INDIANS APRIL 21, 2022 I would like to speak today about protection for Indian sacred sites. I am both [...]

INTRODUCTION In the past year, a certain momentum has gathered behind the Court's rulings on free exercise issues with cases like Fulton v. City of Philadelphia and Roman Catholic Diocese [...]

TABLE OF CONTENTS ABSTRACT 435 TABLE OF CONTENTS 436 I. INTRODUCTION: A TALE OF TWO SIKHS 437 II. RELIGIOUS LIBERTY: A FREEDOM WORTH FIGHTING FOR 439 A. Religion in the [...], This Article details the importance of religious freedom in the United States and its armed forces, as well as the unfortunate history of non-accommodation that has plagued the Department of Defense (DoD) until recent years. It reviews the jurisprudence surrounding military service member free-exercise claims before and after the landmark Religious Freedom Restoration Act (RFRA) of 1993, and it analyzes how courts have addressed those claims within the military. It proposes an analysis for handing religious accommodation claims under RFRA in the military, and examines a series of hypotheticals that demonstrate the issues the DoD must confront and accommodate if it is to value its members' religious liberty.

INTRODUCTION Following the premiere of the documentary Francesco on October 21, 2020, the head of the Catholic Church, Pope Francis, appeared in news headlines around the world for his remarks [...], Recent increases in LGBTQ+ anti-discrimination laws have generated new conversations in the free exercise of religion debate. While federal courts have been wrestling with claims brought under the Free Exercise Clause of the First Amendment since the nineteenth century, city and state efforts to codify legal protections for LGBTQ+ individuals in the mid-twentieth century birthed novel challenges. Private individuals who do not condone intimate same-sex relationships and/or gender non-conforming behavior, on religious grounds seek greater legal protection for the ability to refuse to offer goods and services to LGBTQ+ persons. Federal and state courts must determine how to resolve these competing discriminations. This Comment addresses which standard of review federal courts ought to apply when considering whether LGBTQ+-protective laws violate the Free Exercise Clause of the First Amendment.

The story of Jack Phillips and his cake shop--Masterpiece Cakeshop--is by now familiar. Jack Phillips declined to create a custom wedding cake celebrating a same-sex wedding because of his religious [...]

On the campaign trail, President Joe Biden said one of his top legislative priorities for the first 100 days of his presidency was to amend the 1964 Civil Rights Act [...]

Table of Contents I. Introduction II. Culture War Politics and the Rise of Conscience Clauses A. Religious Freedom Restoration Act B. Culture Wars Today III. ACA Protections and Failures: Patients [...], Recent cases and political movements have severely limited reproductive healthcare access for many across the United States. Religious freedom has been the purported reason for these intrusions into bodily autonomy. In this article, I show how the range of ways in which religious exemptions are growing and impinging on the legal rights of those seeking reproductive healthcare, and especially abortion care. I argue that while cases like Hobby Lobby undermine the original intent of religious freedom laws, much of the political rhetoric remains the same. The polarization between religion and sex and gender-related rights--another iteration of culture war politics--causes the growth in these exemptions. I recommend several policy reforms that can align religious freedom laws to their original intent and warn legal activists against proactive litigation in the era of Trump-appointed judges. Importantly, I present a novel survey of state-level religious freedom statutes and offer a roadmap for legislators to protect access to reproductive healthcare in their states.

This essay is a collaborative effort to engage in a dialogue on church-state issues that are often hotly debated in our society. Each of us has strongly held positions on [...]

INTRODUCTION Located on the island of Hawaih, (1) Maunakea (2) is one of the most sacred locations in Native Hawaiian culture. (3) The Native Hawaiian community has long opposed private [...], Courts historically side with private interests at the expense of Indigenous religious rights. Continuing this trend, the Hawai'i State Supreme Court allowed the Thirty-Meter-Telescope to be built atop Maunakea, a mountain sacred to Native Hawaiians. This decision led to a mass protest that was organized by Native Hawaiian rights advocates and community members. However, notwithstanding the mountain's religious and cultural significance, Indigenous plaintiffs could not prevent construction of the telescope on Maunakea. Unlike most First Amendment rights, religious Free Exercise Clause claims are not generally subject to strict constitutional scrutiny. Congress has mandated the application of strict scrutiny to federal government action that imposes a substantial burden on religious activity through the Religious Freedom Restoration Act (RFRA). However, because most courts narrowly interpret "substantial burden," it has become nearly impossible for Indigenous plaintiffs to succeed on claims involving violations of religious freedom. Moreover, RFRA does not apply to state governments, and most states--including Hawai'i--have not enacted similar protections for religious rights. This Comment suggests that the Hawai'i State Legislature should enact a state version of RFRA that would apply strict scrutiny to government actions that impose a substantial burden on religious rights. Further, this Comment urges Congress and state legislatures to enact a more expansive definition of "substantial burden" that respects the First Amendment rights of Indigenous people to practice their beliefs.

In County of Allegheny v. ACLU Greater Pittsburgh Chapter, Justice Kennedy famously criticized the endorsement test as requiring judges to "us[e] little more than intuition and a tape measure." (1) [...]

INTRODUCTION 1026 I. THE RULES REGARDING SEX OFFENDERS 1029 II. SEX OFFENDERS AND THE FREE EXERCISE OF RELIGION 1033 A. Sex Offenders and Church Attendance 1033 B. The Basic Problem [...], In a variety of ways, sex offenders in the United States find themselves in a difficult position. One of the lesser-known ways relates to the free exercise of religion. Sometimes by categorical statute, and sometimes by individualized, parole, probation, or supervised-release condition, sex offenders can find themselves legally barred from places where children are present (or likely to be present). Because children are usually present at religious services, sex offenders can find themselves unable to attend them altogether. And this hardship has a bit of irony in it too. Back in prison, sex offenders could worship freely with others; now ostensibly free, they can no longer do so. This simple problem has real scope-tens (maybe hundreds) of thousands of people barred from essentially all religious services, sometimes for decades, sometimes for life. Moreover, these prohibitions are often vague and overbroad-and so restrictive that low-level administrators (like sheriffs and probation officers) are often pushed into softening or waiving them. But this ends up creating a kind of licensing scheme, whereby low-level government officials make-on their own, without any formal criteria-ad hoc and practically unreviewabk decisions about who gets to go to church and under what conditions. Risks of selective enforcement, discrimination, and abuse are obvious. These rules have come into being as if concerns about the free exercise of religion have no weight at all. But this is not the case. In fact, a robust body of law protects the free exercise of religion, requiring exemptions from religiously burdensome laws. Now this does not mean that sex offenders should be universally exempt from any and all restrictions regarding church attendance. There are probably some people who pose such a threat to children that they should be kept away from churches. Courts will have to answer tricky questions-who should be barred, who should decide who is barred, and on what criteria?-that require nuanced and elaborate answers. Yet informed by analogies from other areas of law (like freedom, of speech) where courts have l[upsilon]restkd with similar issues, this Article offers some recommendations that are analytically rigorous, practically realizable, and judicially manageable.

ABSTRACT Religious commerce has long sat uncomfortably at the nexus of public law and private law. On the one hand, such transactions invariably have garden-variety commercial objectives, which are best [...]

ABSTRACT What is the meaning of a "substantial burden" on religion under the federal Religious Freedom Restoration Act (and its state-level equivalents)? This question is timelier than ever, as several [...]

Abstract In 2015, a woman known as "Mary Doe" challenged a Missouri abortion restriction requiring her to wait seventy-two hours after receiving certain "informed consent" materials before she could obtain [...]

INTRODUCTION In the course of holding that same-sex couples have a constitutional right to marry, the Supreme Court in Obergefell v. Hodges reassured opponents of its majority decision that "[m]any [...]