"What should replace Smith?" That was Justice Barrett's main question in 'Fulton v. City of Philadelphia'. She expressed serious misgivings about the governing free exercise rule, set out in ...'Employment Division v. Smith', according to which laws that are neutral and generally applicable do not draw a presumption of invalidity simply because they burden religion. How should Justice Barrett’s question be answered? The way that judges, lawyers, and academics respond could be consequential. Conditions for an overhaul of free exercise doctrine are surprisingly favorable, despite the polarized state of constitutional politics. A notable number of Justices are open to replacing the rule of Smith with a rule that requires at least some exemptions from general laws that substantially burden observance. This Comment offered one possibility, the framework of liberty of conscience, that maintains overall consistency with the commitment to egalitarian democracy. Yet it has also warned that any such rule would likely be applied in
a manner that reflected the particular politics of religious freedom already being implemented by the Roberts Court. Rather than protecting free and equal democratic membership in matters of conscience, this Court is more likely to use any additional leeway to extend its power of judicial review in the direction of religious preferentialism and a laissez-faire political economy. To whatever degree constitutional doctrine drives results, implementing a new rule today might adversely affect the liberty of those who need protection most.
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3.
Religious Exemptions Anne Zimmerman
Voices in bioethics,
11/2021, Volume:
7
Journal Article
Imagine three kinds of statutes: The first limits only signs displaying political messaging. The second restricts only signs directing passersby to nearby events. And the third regulates only signs ...advertising off-premises activities. When the Supreme Court decided 'Reed v. Town of Gilbert' several Terms ago, it suggested that all three posed serious threats to First Amendment interests and therefore warranted "strict" judicial review. A law is "presumed unconstitutional," 'Reed' announced, if it regulates speech "based on the message a speaker conveys." That sweeping rule, taken at face value, surely applies to all three of the statutes listed above - as well as many other, perhaps "entirely reasonable" laws. But one of these statutes, the Supreme Court held last Term in 'City of Austin v. Reagan National Advertising of Austin, LLC', is not like the others; the third - a location-based sign restriction - just doesn't belong. 'City of Austin' made two important contributions to constitutional free speech law: It clarified that 'Reed' does not go as far as many had feared. And it provided lower courts with some direction for how to think about 'Reed' going forward. But serious concerns about 'Reed''s breadth remain - concerns that will continue to trouble and divide courts as they figure out how exactly to apply 'Reed'.
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6.
Transgender constitutional law Eyer, Katie
University of Pennsylvania law review,
05/2023, Volume:
171, Issue:
5
Journal Article
Peer reviewed
Litigation addressing the constitutional rights of the transgender community has exploded in the last decade. This litigation revolution has fundamentally reshaped the constitutional landscape with ...respect to the equality and liberty rights of transgender litigants, recognizing the transgender community as constitutionally protected subjects entitled to meaningful rights. And yet-because this litigation revolution has occurred in the lower and state courts-it has remained comparatively invisible from the perspective of the legal literature.
This Article provides the first systematic account of this constitutional law revolution in transgender rights. Based on an analysis of five years (2017-2021) of transgender constitutional rights litigation, it offers a comprehensive descriptive account of contemporary constitutional transgender rights litigation in the equal protection and due process contexts. As that analysis reveals, recent transgender rights litigation has resulted in important and consistent victories for transgender constitutionalism in the lower and state courts. Indeed, recent constitutional decisions are close to (though not entirely) unanimous in their treatment of the transgender community as warranting meaningful constitutional protections.
This revolution in transgender constitutional rights is important in its own right-indeed it is likely to be critical at a time when a wave of anti-transgender legislation is currently sweeping the country. But it is also important for the ways it calls into question the conventional wisdom of constitutional law as a field. As this Article elaborates, contemporary transgender constitutionalism challenges many of the assumptions of constitutional law scholars, including assumptions regarding the death of suspect class analysis under equal protection doctrine, the impossibility of new fundamental rights under the Due Process Clause, and the weakness and futility of rational basis review. It thus highlights the importance of attending to the constitutional law of the lower federal and state courts-not only that of the United States Supreme Court.
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The First Amendment prohibits discrimination against religion. In a short time, mostly in cases challenging efforts to contain the Covid pandemic, the Supreme Court has transformed this familiar rule ...into new, more exacting doctrines that can exempt religious people from almost any law. This Essay taxonomizes these doctrinal variants, showing that they are dangerous, indefensible mutations of the most-favored-nation (MEN) theory of religious discrimination. These variants go well beyond the most attractive rationale for MEN. Their implications are so anarchic that the Court cannot possibly pursue them to the limits of their logic. Their deployment in practice will be necessarily selective and is likely to benefit claimants the judges like and to constrain laws the judges dislike.
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There is an emerging discrepancy in free exercise and equal protection law. For decades, the Supreme Court has maintained that a law's effects on a protected group are usually insufficient to trigger ...heightened scrutiny under either the Free Exercise or Equal Protection Clause. This longstanding rule has rendered it virtually impossible to challenge facially neutral laws on constitutional race, sex, and religious discrimination grounds, even where such laws inflict substantial harms on protected groups. Recent free exercise decisions, however, have abandoned this traditional barrier to enforcing constitutional equality rights. In doing so, they have subverted the usual rule that a law's effects do not much matter, not just under the Free Exercise Clause, but also under the Equal Protection Clause.
This Article argues that recent free exercise law makes a powerful case that a law's effects both can and should play a meaningful role in triggering equal protection scrutiny. Free exercise and equal protection cases historically relied on the same theoretical and doctrinal principles to dismiss a meaningful role for effects in triggering heightened scrutiny. Recent free exercise law-by providing such a role for effects-has overcome each objection. In the process, it has created a doctrinal roadmap for overcoming the same objections in the equal protection context. It has also provided good reason to do so. Recent free exercise decisions have justified attention to effects by insisting that laws that devalue protected interests merit heightened scrutiny. In doing so, they have endorsed a broad new theory of equality that applies to, and requires attention to effects in, the equal protection context.
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