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Abstract:
This paper critically analyzes the possibility and structure of First Amendment defenses to actions, both private and public, arising out of sexual misconduct by members of the clergy. Part I traces the expansion of relevant theories of tort and criminal liability, and the waning of immunities, constitutional and statutory, that once applied to such actions. Part II of the paper advances a normative theory of the constitutional distinctiveness of religion, and ties that theory to the possibility of ecclesiastical immunity. Most conceptions of such immunity represent assertions of the liberty of religious organizations, and are grounded in the Constitution's Free Exercise Clause. Our approach, however, is grounded in the Establishment Clause, and proceeds from a vision of jurisdictional limits on civil government. Part III of the paper then brings the lessons of Part II to bear on the particular problems of sexual abuse by clergy, and the criminal and civil liability of secondary actors and enterprises for such misconduct.

Woven into the fabric of Part III are three major themes. First, those who perpetrate sexual harms against children, or against others who lack capacity to consent, have no claim of ecclesiastical immunity. Second, the religious status of persons, and the religious character of institutions should not give rise to fiduciary duties as a matter of law. The judicial creation of such duties violates the constitutional prohibition on discrimination against religion as compared with its secular counterparts. Third, adjudication of wrongful acts in the hiring and supervision of clergy must be conducted with sensitivity to constitutional concerns of both substance and process. Borrowing from the law concerning First Amendment limitations on the tort liability of the press, we argue that liability of supervising institutions should be limited to cases involving an intentional failure to supervise, and that processes of adjudication should be tailored to maintain compliance with that standard.

clergy misconduct, first amendment, tort liability

Abstract:
This paper, originally presented as the Annual Lecture at DePaul University's Church/State Center, addresses the many constitutional issues raised by President George W. Bush's Faith-Based and Community Initiative. Part I of the paper provides the political and legal background of the Initiative, up to and including the recent flurry of Executive Branch activity to implement it. Part II of the paper constructs the constitutional prism through which we believe the Initiative, like all constitutional questions relating to religion, should be viewed. In particular, we analyze the law of the Religion Clauses in terms of the constitutional distinctiveness or non-distinctiveness of religion and religious institutions. In some circumstances, constitutional principles mandate non-distinctive treatment of religion. The access of private religious voices to the public forum is a good example. In other circumstances, constitutional principles mandate wholly distinctive treatment of religion. The prohibition on government endorsement of sectarian messages is a good example. In all other circumstances, government is free to exercise discretion to treat religion and its secular analogues similarly or dissimilarly, though that discretion is frequently bounded in particular ways. Locke v. Davey, and Corp. of Presiding Bishop v. Amos, are good examples of such discretion being exercised in permissible ways. Relying on this complex prism of constitutional distinctiveness, Part III of the paper returns to the Faith-Based and Community Initiative, and analyzes the issues it has spawned. Part III discusses comprehensively 1) the differences between direct and indirect government financing of faith-based organizations, and the substantive and procedural requirements imposed by the Constitution with respect to each; 2) the Administration's regulatory approach to the Initiative, and the failures of guidance associated with its efforts; 3) the lower courts' treatment of the lawsuits that have arisen out of the Initiative; and 4) the thorny issue of whether the Constitution requires, permits, or forbids the possibility of faith-based hiring by religious organizations engaged in government-financed social services.

Religion clauses, first amendment, faith-based initiative

Abstract:
This piece focuses on the Supreme Court's recent decision in Zelman v. Simmons-Harris, the Cleveland school voucher case, and the constitutional questions that have already begun to appear in its aftermath. After describing the constitutional crossroads at which the Zelman Court found itself, we offer a close reading of the Zelman opinions, paying special attention to the normative vision of church-state relations that each presupposes, the values that the Court failed to explore, and practical questions about the range of school settings to which Zelman might ultimately be applied. The piece then explores the legal and constitutional future of the voucher movement, with respect to education as well as other social services. This section first focuses on knotty questions of state constitutional law, and the interplay of those questions with federal constitutional norms, that have arisen in Zelman's wake. The piece then turns to the debate about regulatory conditions that might be imposed upon providers in voucher programs. Viewing the problem in light of the Supreme Court's tangled jurisprudence of unconstitutional conditions and religious accommodation, we explore conditions related to school performance, student admissions, faculty hiring, and controversial expression by providers. Finally, we analyze the importance of Zelman outside the field of education, by probing the decision's implications for the President's Faith-Based Initiative - that is, for efforts by government to enlist faith-based organizations in providing a variety of social services.

Abstract:
Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion? In recent years, a number of commentators have been asserting that the Establishment Clause should not apply to the states. Justice Thomas has embraced this view, while offering his own refinements to it. Moreover, the Supreme Court's decision in Locke v. Davey (2004) ruled that a state did not run afoul of the Free Exercise Clause when it refused to subsidize religious studies, in a context in which the Establishment Clause would have permitted the subsidy.

This paper offers a focused (re)consideration of federalism and faith. Part I offers a succinct look at federal-state relations on the subject of religion prior to Reconstruction. Part II confronts the constitutional developments that emerged from the Civil War and Reconstruction, and traces the Reconstruction story into the 20th century, when the Supreme Court first applied the Religion Clauses to the states. Part III then briskly chronicles the rise of Separationist interpretations of both Religion Clauses, and the incomplete recession to narrow interpretations of the Religion Clauses that mark the past several decades.

Part IV represents our contextualized effort to add value to the conversation about faith and federalism. State discretion over religion policy is a function of two considerations - the substantive content of the First Amendment, and the extent to which the First Amendment binds the states. In order to test a series of intuitions about faith and federalism, we analyze in Part IV a series of three problems - one in which the state pursues Separationist goals, and the other two in which the state appears to be promoting or aiding religion. Part IV considers these problems within three, distinct regimes of federalism: 1) the current regime of full incorporation of the First Amendment's Religion Clauses; 2) a regime in which the states remain bound by the Free Exercise Clause but are liberated from the Establishment Clause; and 3) an imagined regime of partial incorporation, designed to maintain core non-Establishment norms while explicitly expanding state discretion in the periphery of non-Establishment. We believe that exploration of these problems, and of contrasting regimes of state discretion, will cast considerable light on what is at stake in the battle over federalism and faith.

Federalism, Free Exercise Clause, Establishment Clause, Religion, Faith

Abstract:
The constitutional issues presented by the use at religious institutions of government-financed vouchers for social services have been addressed repeatedly, but virtually all of the writing in the field focuses exclusively on educational services. Most of that writing, moreover, takes the overly simple view that voucher programs are linear relationships running from government to recipient to service provider. Proponents of such programs argue that the presence of recipients as intermediate decision-makers breaks the link between the state and religion, and therefore solves the constitutional problem of church-state connection. Opponents argue that use of intermediaries is nothing more than "money-laundering," and that the Establishment Clause precludes transfers of funds that originate with the state and end up in the accounts of religious organizations.

In this paper, we expand the angle of constitutional vision in three important ways. First, we clarify the theoretical positions on the Religion Clauses that lead commentators, including ourselves, in particular directions on the voucher question. Second, the paper expands beyond the context of education; although the paper concludes with an analysis of the Cleveland school voucher case, now pending before the Supreme Court, most of the paper discusses other examples of voucher programs, including those devoted to child care and treatment for substance abuse. Third, this wider look at voucher programs leads us to analyze voucher arrangements not as a straight line, but instead as a triangle of relationships. Every voucher program involves relationships between government and recipients, government and providers, and providers and recipients. Examining the relevant features of those relationships leads us to a typology of voucher programs, in which we systematically connect programmatic features - in particular, the degree of government compulsion imposed, and personal transformation sought, by the state - to relevant constitutional inquiries into 1) the required mix of religious and nonreligious service providers, and 2) the problem of government monitoring of religious entities. The typology addresses, among other things, the placement of various substantive obligations with respect to the crucial constitutional issues.

We conclude the paper by using our proposed typology to analyze the Cleveland voucher case. Although monitoring presents no problem in the case, the degree of compulsion and child formation present in the scheme should require the state to demonstrate that it has made a good faith effort to ensure the adequacy of the mix between religious and nonreligious alternatives open to Cleveland parents. Because the state failed to take important and obvious steps to meet this obligation, and because the defenders of the program cannot persuasively demonstrate that the steps in fact taken by the state are sufficient, the Supreme Court should not uphold the existing Cleveland program. Our analysis suggests, however, that properly designed voucher programs, educational and otherwise, can satisfy the Constitution.

[Although we completed work on the paper prior to the Court's decision in the Cleveland voucher case, we have added a brief prologue explaining the continued relevance of our analysis to future decisions involving vouchers and various government services.]

Abstract:
The movement in the law of the Religion Clauses from Separationism, which requires distinctive treatment of religious institutions, to Neutralism, which prohibits such distinctive treatment, has been proceeding for the past twenty years. In some legal contexts, however, this movement has occurred erratically or incompletely, and normative questions remain about whether this paradigm change should proceed with respect to all relevant issues. In this paper, we test the positive and normative implications of the shift by exploring in detail a particular, heretofore unexamined legal context - government grants to active houses of worship for historic preservation.

Many states have schemes of historic preservation, which include coercive regulation designed to preserve the historic character of landmarked properties. These regulatory regimes have been challenged as applied to properties owned by religious entities, and courts have reached disparate results on the merits of these challenges. Historic preservation schemes also include the possibility of government grants for the support of preservation efforts, and no court has yet been asked to rule on the permissibility of such grants. In the paper, we begin by analyzing the existing Supreme Court precedent on state financial support for the construction or preservation of places devoted to worship or religious teaching. After briefly reviewing the movement from Separationism to Neutralism, we collect and appraise materials on historic preservation. These include the leading court decisions on landmark regulation of houses of worship; conflicting opinion letters on the permissibility of preservation grants for such structures from Joseph Lieberman (then-Attorney General of Connecticut), and Walter Dellinger (then-Assistant Attorney General, Office of Legal Counsel, DOJ); and information from federal agencies and state historic preservation commissions concerning their current policies with respect to such grants. This review of policy reveals a remarkable degree of disparity, as various levels of government struggle to come to grips with changes in the relevant law. We conclude the paper by invoking a principle of Religion Clause symmetry - what the government may regulate it may also subsidize - and by suggesting that the religion-specific line between permissible and impermissible subsidy (and regulation) should be drawn between the exterior and interior of houses of worship.

Abstract:
Although much has been written on the special place of "religion" in American law, there has been considerably less commentary on the distinctive quality of religious institutions as compared with their secular counterparts. The current law of the Religion Clauses, and the characteristics of institutions as compared to religiously motivated individuals, however, suggest that institutions deserve discrete attention. In this paper, a revised version of the Donald Giannella Memorial Lecture recently delivered at Villanova Law School, the authors focus on three different legal contexts in which questions of distinctiveness of religious institutions arise - their exemption from civil rights law with respect to the employment of clergy, their exemption from historic preservation law with respect to noncommercial real property, and their inclusion in programs of government financial support for privately delivered social services (a/k/a charitable choice). The paper develops a taxonomy of scholarly and judicial positions on such questions, including Religionists (who tend to favor whatever helps such institutions), Secularists (who tend to disfavor whatever helps religious entities), Separationists (who tend to favor distinctive treatment of such institutions, whether it helps or hurts them), and Neutralists (who tend to disfavor such distinctive treatment). In connection with the three examples, the authors develop their own position, which starts from a presumption of Neutralism but requires departures from that position if and only if the government's policy exceeds constitutional limits designed to maintain the state's penultimacy, while leaving ultimate concerns to private institutions dedicated to them.

Abstract:
This essay addresses the proliferation of constitutional issues involving the military chaplaincy. The authors query how the chaplaincy is consistent with the Establishment Clause of the Constitution's First Amendment and note that the answer generally derives from one or more of the following paradigms: (1) Establishment Clause history; (2) Public funding of religion; or (3) Governmental display of religious messages. They suggest that an adequate approach for Establishment Clause analysis of the military chaplaincy requires a different framework. To that end, Part I of this essay describes Katcoff v. Marsh, the most important decision on the constitutionality of the military chaplaincy. Part II turns to the contention that constitutional inquiry into the military chaplaincy should begin from the basic insight that the military chaplaincy exists for the primary purpose of accommodating the religious needs of military personnel. Thus, the chaplaincy bears a family resemblance to other types of religious accommodations, such as exemptions for religious entities from regulation of employment or land use, protections for religious exercises of prisoners or employees, and arrangements for the religious instruction of public school students.

The Supreme Court has considered Establishment Clause challenges to a variety of religious accommodations and, despite the prevailing general sense of disorder in the universe of Religion Clause jurisprudence, the Court's accommodation decisions represent a surprisingly coherent model. These decisions suggest that religious accommodations must satisfy four, linked constitutional norms. First, is the accommodation a reasonable effort to relieve a government-imposed burden on religious practice? Second, do beneficiaries of the accommodation participate voluntarily? Third, is the accommodation available on a denominationally-neutral basis? Fourth, does the accommodation impose significant material burdens on third parties? In Parts III and IV, the authors apply those criteria to constitutional challenges affecting the military chaplaincy. Part III deals with constitutional challenges to the chaplaincy as a whole.

The authors suggest that the institution of the chaplaincy itself should survive challenge, although specific practices of the institution have less certain constitutional footings. Part IV turns to particular challenges, such as the services' policies for hiring, promotion, and retention of chaplains. The authors also examine the services' regulation of particular aspects of chaplains' ministry, including the conduct of worship, prayer at official functions, and pastoral care. The authors attempt to show how the Establishment Clause standards for religious accommodations should guide the relevant inquiry and judgments and assert that consistent application of these standards will intelligently clarify and wisely resolve the current and heated controversies surrounding the military chaplaincy.

military, chaplain, constitutional law, Establishment Clause, First Amendment

Abstract:
In Hein v. Freedom from Religion Foundation, decided in June of 2006, the Supreme Court ruled that federal taxpayers lacked standing to bring an Establishment Clause challenge to a series of conferences designed to promote the Faith-Based and Community Initiative. The explicit grounds for Justice Alito's opinion, speaking for a plurality, is a distinction between legislative decisions to tax and spend for religion - still challengeable by taxpayers - and discretionary executive branch action, which taxpayers may not challenge.

This paper takes a close look at Hein, examines its conceptual underpinnings, and analyzes the questions likely to follow in its wake. The issues that most deeply divide the Justices in Hein are whether the Establishment Clause is structurally different from other provisions of the Bill of Rights, and, if so, what implications for Article III arise from that structural difference. Only in light of these basic and contested issues can the future impact of Hein on Establishment Clause adjudication be explored. The effects of Hein will touch 1) the precise extent to which federal taxpayers will continue to be able to maintain suits to enforce the Establishment Clause; 2) similar suits in the federal courts by state and local taxpayers; and 3) the standing of plaintiffs in other Establishment Clause settings, most notably cases alleging that "observers" of government religious expression are injured by what they see or hear. The paper explores all of these questions in detail, and concludes that Hein - far more than anyone has publicly noticed - has the potential to usher in a new and highly restrictive era of judicial enforcement of the Establishment Clause.

standing, Article III, establishment clause, taxpayers

Abstract:
In the spring of 2009, the legislatures of Connecticut, Maine, New Hampshire, and Vermont became the first in the U.S. to enact laws recognizing the legality of same-sex civil marriage. The legislation in all four states included provisions designed to protect the freedom of clergy and religious communities that do not want to recognize same-sex marriage. The legislation in several of the states also included provisions designed to insulate religious organizations from obligations that might arise from the legalization of same-sex marriage – for example, with respect to adoption or the provision of housing to married couples. Despite academic and political prodding, however, none of the states included provisions designed to exempt public employees, or private vendors in the wedding industry, from pre-existing legal obligations to serve without regard to the same-sex character of a marriage or family.

This paper develops a typology of conflict between same-sex marriage and religious freedom, and builds on that typology to analyze the issues raised by this new legislation. In particular, the paper defends constitutionally distinctive freedoms for clergy and houses of worship with respect to the celebration of marriages; analyzes and critiques proposals that would allow public employees and private vendors to assert conscientious objections to serving same-sex couples; and assesses the circumstances in which religious entities, including religious charities and educational institutions, should be obligated to serve same-sex families on equal terms.

K1, K19, K39

Abstract:
In the fall of 2006, President Gene Nichol of the College of William & Mary decided that the college - a public institution - should no longer display a cross on the altar table of the college's Wren Chapel. He ordered the cross moved to a back room, from which it could be returned to the altar table during Christian worship. This decision sparked an outcry from many Christian conservatives, who asserted that President Nichol was undermining the college's historical legacy. After a period of campus furor, a special Committee proposed and the President accepted a compromise - the cross was returned to the side wall of the chapel, in a display case marked with a historical notation.

The controversy over the display of the Wren Chapel Cross provides a rich opportunity to explore the extent to which state-controlled institutions of higher learning can respond to the religious needs of students or commemorate the religious heritage of the institution. The paper briefly traces the history of the College from its original charter by the English Crown its present day public status. The paper also develops the relevant history of the Wren Chapel and the controversial cross. The paper argues that the competing arguments in this dispute over how the cross "injured" students represent far too thin a framework for exploring the relevant questions.

Instead, the paper argues, the only possible justifications for a public college manifesting a religious voice are theories of accommodation and acknowledgment of religion. The theory of accommodation can support the provision of a chapel for student worship, but cannot justify the central placement of a cross in the chapel as a default configuration. The paper breaks down the theory of acknowledgment into three separate strands - acknowledgment as an accurate rendering of history, acknowledgment as an expression of reverence, and acknowledgment as a response to secular elements of present culture. The paper unpacks the three theories, and tests the dueling claims about the placement of the Wren Chapel cross against each. The lessons to be drawn from this controversy should be illuminating for all public universities in their consideration of religious displays on campus.

religion, university, Establishment Clause, constitution, First Amendment

Abstract:
For nearly forty years, the courts have barred a variety of lawsuits by clergy against their religious entity-employers. These suits frequently involve matters of civil rights, such as sex-based discrimination in employment, but they also involve claims of defamation, violation of fair labor standards, and breach of employment contracts, among others. To justify the barriers to these suits, courts typically rely on concepts drawn from the First Amendment's Religion Clauses. In particular, courts frequently invoke theories of free exercise of religion by religious institutions, or notions of "excessive entanglement" between church and state, to justify this line of case law. Although cases of this character are frequent and geographically widespread, the Supreme Court has not taken up these issues for many years. As a result, large questions loom with respect to whether the Court's more recent decisions - for example, Employment Division v. Smith - support the existing barriers to these lawsuits.

The existing theories offered to explain this line of cases are inadequate. This paper critiques those theories, and advances a new and comprehensive concept of "adjudicative disability" to explain precisely when courts should refrain from deciding certain questions. This approach, which centers on the appropriateness of judicial resolution of questions rather than on the character of the parties or the label associated with the cause of action, is both normatively superior to and capable of more principled application than its rivals. The paper demonstrates the advantages of the theory of "adjudicative disability" by applying it to a series of hypothetical cases across a range of difficulty.

"adjudicative disability", clergy, civil rights, religious institutions, free exercise of religion, First Amendment's Religion Clauses

Abstract:
This paper, commissioned and published in June 2008 in connection with the White House-sponsored Conference on Innovations in Effective Compassion, addresses the changing legal environment relevant to government partnerships with religious providers of social services. In particular, the paper maps the federal government's regulatory agenda in connection with the Faith-Based and Community Initiative (FBCI) onto the changes in constitutional law over the past several decades. After briefly surveying the key developmental points in the relevant constitutional law, the paper explores specific changes in federal regulations governing aid to religious providers of welfare services, and considers the litigation efforts that have occurred in conjunction with the FBCI. Some of the litigation may be traced, at least in part, to inadequacies in the FBCI's regulatory reform. In addition, the paper provides recommendations for federal and state regulatory language that could be used to facilitate the FBCI while keeping it within constitutional bounds. The paper includes a research bibliography and a table of all litigation that bears on the Initiative.

faith-based and community initiative, FBCI, constitutional law, religious providers, federal regulation