First Amendment
The Reverse-Entanglement Principle: Why Religious Arbitration of Federal Rights Is Unconstitutional
Several courts have compelled religious arbitration of employment disputes even when the arbitration agreement explicitly states that holy text would trump federal law. This Comment articulates a “reverse-entanglement” principle that explains why courts violate the Establishment Clause when they enforce arbitral decisions that apply religious principles to secular-law disputes.
A Legal Sanctuary: How the Religious Freedom Restoration Act Could Protect Sanctuary Churches
Over the last three decades, the doctrine and political valence of protections for religious exercise have shifted significantly. This Note analyzes how those changes provide new legal protections for sanctuary churches, demonstrating how religious freedom statutes can protect marginalized individuals and serve progressive causes.
Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop
Conversation about Masterpiece Cakeshop has focused on the Court’s holding that decisionmakers must treat those seeking religious exemptions with respect. This Essay brings to light the case’s broader guidance on religious exemptions under the Free Exercise Clause and what that means for judicial and legislative actors going forward.
The Limits of Professional Speech
This Essay argues that the definition of professional speech should not be expanded beyond the doctrine’s purpose: ensuring that clients receive accurate, comprehensive, and reliable advice in accordance with the insights of the relevant knowledge community. It then examines these limits of professional speech through NIFLA v. Becerra.
The First Amendment Freedom of Assembly as a Racial Project
Beginning with the author’s experience of being arrested as a legal observer during a Ferguson protest, this Essay explores the First Amendment freedom of assembly’s fragile protection for those who fight for racial justice, arguing that civil rights movements have always been and continue to be disproportionately chilled by authorities.
Natural Rights and the First Amendment
This Article excavates the Founding Era approach to expressive freedom, which was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. This forgotten history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself.
A Trademark Defense of the Disparagement Bar
The Supreme Court will soon hear argument over whetherCongress may forbid registering trademarks that consist of “matter which may disparage or falsely suggest aconnection with persons, living or dead, institutions, beliefs, or nationalsymbols, or bring them into contempt, or disrepute.” The disparagement bar is thebasis for the 2014 ruling by the Trademark Trial and Appeal Board (TTAB) thatordered the cancellation of trademark registrations belonging to the WashingtonNFL team because the term “redskin” disparages Native Americans. Late last year, however, theFederal Circuit ruled en banc that the disparagement bar is unconstitutional onFirst Amendment grounds in In re Tam.
Religious Liberty for Politically Active Minority Groups: A Response to NeJaime and Siegel
Warrant Canaries and Disclosure by Design: The Real Threat to National Security Letter Gag Orders
Garcia v. Google and a "Related Rights" Alternative to Copyright in Acting Performances
Should the Ministerial Exception Apply to Functions, Not Persons?
122 Yale L.J. 1964 (2013). In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court confirmed what the lower courts had been saying for some time: the First Amendment prohibits the application of the employment discrimination laws to the relationship between a church and its ministers. Despite Hosanna-Tabor’s significance, however, the so-called ministerial exception remains in flux. For one thing, it is still unclear who will be deemed a “minister” for purposes of the doctrine. The answer to that foundational question may be more complicated than it appears. Thus far, courts and commentators have assumed that ministerial status is binary; a given employee either is a minister (in which case the First Amendment completely bars her suit) or she is not (in which case her suit proceeds like any other). That way of thinking may make sense for the easy cases, but it fits uneasily with the wide range of positions that have been labeled ministerial by the lower courts. This Note accordingly suggests an alternative framework that more closely tracks the functional considerations that underlie the ministerial exception. In short, it argues that a revised exception—one that applies to ministerial functions, not ministerial persons—better strikes the balance between antidiscrimination values and religious liberty that the First Amendment requires.