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Failure to Accommodate: Assessing the Legacy of Trans World Airlines v. Hardison on Working-Class People of Faith

31 George Mason Law Review Forum 1 (2023)
Link to Article on SSRN

Congress amended Title VII in 1972 to require employers to accommodate employees’ religious practices, so long as accommodation does not create an “undue hardship” for the employer’s business. But reliance on a cramped interpretation of “undue hardship” has prevented our nation from realizing Title VII’s promise of a workplace free of discrimination against religious Americans.

This article describes our original research examining Title VII religious accommodation cases decided on summary judgment between 2000 and 2023. We found that over 80% of the plaintiffs were in working-class occupations. Indeed, more than 60% of the plaintiffs were in occupations requiring only a high school diploma and up to a year of experience.

This article argues that the Supreme Court should restore Title VII’s full protection to working-class people of faith.

What Lord of the Rings Can Teach the Supreme Court About Abortion

Regent University Law Review Pro Tempore (2022)
Link to Article on SSRN

J.R.R. Tolkien’s Lord of the Rings saga tells of a ring whose power seduces all who come to possess it. Although they know that the ring corrupts the souls of those who hold it, they struggle to surrender it. Tolkien’s books recount centuries of suffering caused by the One Ring and the missed opportunities to relinquish and destroy it.

It’s a classic plot line. A character knows what he should do—even what he must do—but fails to act when he has the opportunity. A similar story will unfold this summer at the U.S. Supreme Court. The Justices have a chance to remedy a grave injustice and overrule Roe v. Wade. Will they be seduced by the power granted to them by cases like Roe and Casey? Perhaps they’ll be tempted to stop short, finding some half-measure that seemingly allows them to avoid confronting these pernicious cases head-on. Many fear the consequences of overruling Roe. But the consequences of failing to act at this critical moment may be much worse.

Dobbs provides the Supreme Court a second chance to do what it wouldn’t do in Casey. The Court must voluntarily relinquish the power it seized in Roe and return the issue of abortion to the process of democratic discussion and debate that produces governing law. Doing so would be a first step toward healing a long-festering wound to our life together as a nation and to our judicial institutions.

A Second-Class First Amendment Right? Text, Structure, and Free Exercise After Fulton

57 Wake Forest Law Review 711 (2022)
Link to Article on SSRN

When the Supreme Court granted certiorari in Fulton v. City of Philadelphia in February 2020, many hoped the Court would overrule Employment Division v. Smith and restore strict scrutiny for free exercise claims. Although Fulton stopped short of overruling Smith, it indicates that Smith’s days are numbered. The question is no longer whether Smith will go. It is, instead: What should replace Smith? This article addresses that question, picking up where Fulton leaves off.

Fulton confirms that at least five Justices stand ready to overrule Smith. But two of those five will not overrule Smith until they better understand what should replace it. Those Justices (Barrett and Kavanaugh) are skeptical about “swapping” Smith’s rule for Sherbert’s “equally categorical strict scrutiny regime.” They suggest that the historical record is “more silent than supportive” on whether Smith should be overruled and that the “textual and structural arguments against Smith are more compelling.”

Smith doesn’t fit comfortably with other First Amendment rights. It doesn’t address the elephant in the room: How should courts deal with neutral and generally applicable laws that burden religious exercise? While Smith focuses on the nature of the challenged law, we argue that Smith’s replacement should focus on conduct at issue and be informed by the history and tradition of regulating that conduct. To avoid doctrinal erosion, a new free exercise doctrine must find ways to assess both the sincerity of the claim and the relationship between the challenged law and the burden on religious practice. We suggest that pleading standards that emerged two decades after Smith might help cull weak and implausible claims before the application of strict scrutiny.

Wrong Enough to Fix: Measuring and Weighing Wrongness in Ramos v. Louisiana

34 Regent University Law Review 515 (2022)
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Questions and inconsistencies riddle the Court’s stare decisis doctrine. The Court often repeats the obligatory phrase: “Stare decisis is not an inexorable command.” Almost as often, the Court explains that overturning precedent requires “special justification” or “strong grounds” beyond the mere wrongness of the precedent. Wrongness itself is only a threshold question. But even this threshold question is ill-defined. During oral argument in Dobbs, the Chief Justice raised the standard by which we measure wrongness. Whether a case is wrongly decided may depend upon whether we apply contemporaneous legal principles and doctrine or measure the precedent against our own understanding of constitutional interpretation. And once the Court concludes that a case is wrongly decided, how does that weigh into the calculus of whether a case should be overturned? Is wrongness alone a sufficient reason to overturn a case? Or merely a necessary predicate? The Court’s precedent on precedent remains unclear on each of these points.

This Article focuses on the threshold stare decisis question of wrongness. Part I briefly summarizes stare decisis doctrine with particular attention paid to how the Court evaluates and weighs “wrong” precedents. Two radically different approaches to stare decisis appear in the Court’s decisions over the last century. The first of these approaches often overturn precedent with very little discussion of external factors beyond wrongness; the second engages at length with factors such as real-world harm, institutional legitimacy, and reliance. Parts II and III turn to the Court’s most recent thorough exposition of stare decisis doctrine—Ramos v. Louisiana. Few cases have exposed divisions on the wrongness question like Ramos, which yielded five different opinions among the Justices. Each opinion touches on wrongness, revealing dramatically different approaches. This Article divides the wrongness question into two subparts, both explored primarily through the opinions in Ramos: (1) how the Court measures wrongness (addressed in Part II); and (2) how the Court weighs wrongness alongside other factors (addressed in Part III).

Relieving The Crisis in Religious Liberty: Book Review of Religious Liberty in Crisis, Exercising Your Faith in an Age of Uncertainty

34 Regent University Law Review 339 (2022)
Link to Article on SSRN

Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty, by Kenneth Starr, presents its subject as a tapestry of individual stories of specific Americans, each with their own faith-inspired hope for themselves and their communities. Judge Starr uses these stories to illustrate the Great Principles that fortify this tapestry and guide the Supreme Court’s resolution of religious-freedom disputes.

Even so, questions remain. Will these Great Principles endure in our current age of uncertainty? And what can people of faith do to preserve the hope of religious freedom in an era of significant cultural change? This book review explores those questions and offers suggestions for those who are interested in protecting religious liberty in this era of uncertainty.

Fulton and the Future of Free Exercise

33 Regent University Law Review 5 (2020)
Link to Article on SSRN

In October Term 2020, the Supreme Court will decide Fulton v. City of Philadelphia.  Among other things, that case asks the Court to consider the question of whether to overrule Employment Division v. Smith and reconsider the meaning of the Free Exercise Clause.

Smith’s interpretation of the Free Exercise Clause rested primarily on normative, rather than textual or historical, grounds: The Court thought it would be better to leave religious accommodation to the political process rather than require judges to weigh state interests against burdens on religious practices. But was that true? Thirty years of experience suggests not.

This article begins with a primer on Fulton, the Supreme Court’s Free Exercise Clause jurisprudence leading to Smith, Smith itself, and the legislative responses to it—all with an eye toward what has been learned since Smith and how that informs the question of whether Smith should be overruled. It next examines and responds to the arguments in favor of Smith and its legislative-accommodation approach. Then, it considers the historical justifications for the Free Exercise Clause and the religion clauses more broadly, again with an eye toward the contemporary debate over the Free Exercise Clause.  The article concludes by discussing what all of that might mean for Fulton, the polarized context in which current free-exercise cases occur, and the protection of liberty in a pluralistic society.

A Center Dedicated to Preserving a Constitution Designed for a Moral and Religious People

33 Regent University Law Review 1 (2020)
Link to Article on SSRN

The decisions of the Supreme Court and, ultimately, the preservation of the Constitution itself rest downstream from culture. This introductory article describes the Robertson Center’s mission to pair academic writing with courtroom advocacy to promote first principles in constitutional law such as originalism, separation of powers, judicial modesty, and religious liberty. Further, this article explains the importance of institutions like the Robertson Center in preserving, protecting, and defending our Constitution.

Preserving a Constitution Designed for a Moral and Religious People

Center for Christian Thought & Action (Aug. 3, 2020)
Link to Article

To preserve our written Constitution and the balance of power it represents, our courts must apply the text according to its original public meaning. In this article, the Center briefly explains what originalism is, why it matters, and why the biggest threat to our constitutional order is the failure to pass to subsequent generations the character, virtue, and knowledge required to protect constitutional safeguards.

The Progressive Flight from Law and the Constitution

National Review (Oct. 13, 2022)
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The legal academy is abuzz over U.S. Circuit Judge James Ho’s decision to boycott clerks from Yale Law School.  Judge Ho’s decision came in response to what he saw as a troubling pattern at Yale of disrespecting and disrupting speakers arguing from conservative viewpoints.

Whatever one thinks of the position taken by Judge Ho, something feels different as a new school year and new Supreme Court term get underway.  And it’s troubling.

How did we get here?  Not long ago, progressives and conservatives disagreed about case outcomes, but both sides still embraced constitutional values.  Over time, however, progressives distanced themselves from certain parts of the Constitution.  Then, they began questioning the legitimacy of the Supreme Court.  Now, some call for us to scrap the Constitution altogether.

This article, authored by Dean Brad Lingo and the Honorable John D. Ashcroft, serves as a reminder that the Constitution limits government power and majority rule to guarantee inalienable rights against those who think they know better.

The Supreme Court Must Have the Courage to End Roe‘s Corruptions of Our Body Politic

National Review (May 3, 2022)
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Few issues divide Americans like abortion.  These divisions will endure long after Dobbs.  The Court cannot craft a social and health policy that will resolve these differences.  Nor can it bring peace through half-measures.  But national healing can begin by restoring our constitutional traditions and returning this long-running debate to the people.

That is, we must return to the solution provided by our Constitution: a confident federalism that allows for differences and fosters vigorous debate.  The Court should seize this opportunity to return to the people and to the Court their traditional roles in our constitutional republic.