LAW & RELIGION eJOURNAL
"Public School Teachers & Transgender Students & Pronouns"
Balkinization, March 19, 2020
University of Miami Legal Studies Research Paper No. 3816024
CAROLINE MALA CORBIN, University of Miami School of Law
This is a short review essay of Helen Norton’s book, The Government’s Speech and the Constitution. It applies Professor Norton’s framework to the question of a public school teacher who refuses on religious grounds to use the proper pronouns of transgender students in their classroom. It concludes that public school teachers do not have a free speech right to misgender students. To start, how teachers address students is likely government speech, and therefore outside the scope of Free Speech Clause protection. Even if not, it fails the Pickering-Connick balancing test. First, while the topic of gender identity is without doubt a matter of public concern, at issue is not a discussion of it but a private interaction. Second, a teacher’s refusal to abide by anti-discrimination rules is highly disruptive of the school's mission given the negative impact on the education of transgender students. Finally, for a public school to accommodate the teacher may violate the Equal Protection Clause.
"The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait"
Supreme Court Review
LEE EPSTEIN, Washington University in St. Louis - School of Law
ERIC A. POSNER, University of Chicago - Law School
The Roberts Court has ruled in favor of religious organizations far more frequently than its predecessors—over 81% of the time, compared to about 50% for all previous eras since 1953. In most of these cases, the winning religion was a mainstream Christian organization, whereas in the past pro-religion outcomes more frequently favored minority or marginal religious organizations. A statistical analysis suggests that this transformation is largely the result of changes in the Court’s personnel: a majority of Roberts Court justices are ideologically conservative and religiously devout—a significant break from the past. We also explore other possible explanations.
"The Religious Conversion of Corporate Social Responsibility"
Emory Law Journal, Vol. 71, No. 2, 2021
ELIZABETH SEPPER, University of Texas at Austin - School of Law
JAMES DAVID NELSON, University of Houston Law Center
This Article debunks the analogy often drawn between principles of corporate social responsibility (CSR) and claims for corporate religious exemption. In the wake of the Supreme Court’s decision in Burwell v. Hobby Lobby, which held that for-profit businesses are eligible for religious exemptions from general laws, a rising tide of scholars and advocates has argued that the two programs are symmetrical and mutually supportive.
Looking to the intellectual history of CSR, we demonstrate sharp conflicts—rather than congruence—between the analytical underpinnings of CSR and religious exemptions for corporations. Whereas CSR enlists law-abiding corporations to advance public objectives, these religious exemptions oppose state laws in the personal interest of shareholders. Our analysis uncovers a fundamental mismatch be-tween the political and economic orders imagined by CSR and corporate religious exemptions. Corporate social responsibility posits a distinctly democratic political economy with the state leading its corporate allies in pursuit of societal goals. Proponents of corporate religious exemptions subvert this tradition: corporations defend private liberty from the threat of the public. This vision of the state and the corporation in law, politics, and the economy proves anathema to the project of corporate social responsibility.
"In Defense of Chain Migration"
Christianity and the Law of Migration, Routledge Press (2021) editors: Silas W. Allard and Raj R. Nadella.
BILL ONG HING, University of San Francisco - School of Law
The vast majority of immigrants to the United States enter through categories set forth in a statutory selection system that emphasizes family reunification. However, since the early 1980s, attacking those family immigration categories has become a popular political sport played every few years. The most recent version of the sport is embodied by the introduction of the RAISE Act and statements condemning so-called “chain migration” by President Trump. The assault on family immigration generally is framed in terms that would replace family categories with those that would enable “skilled” immigrants to immigrate instead. The President, like many others, derides the so-called “chain migration” system as enabling one person to bring in “32 people. . . . You come in and now you can bring your family and then you can bring your mother and your father, you can bring your grandmother.” The claim is that the family-based system allows entry to “virtually unlimited numbers of distant relatives.” Instead, critics of family migration argue that the system should focus more on “merit” rather than family, and assign points to prospective immigrants based on factors like age, education and English skills.
Critics of family immigration and I have different starting points when it comes to priorities in the admissions system. The so-called “merit” proponents claim that to help the economy, more jobs and skill-based criteria should be used. My position is that the nation and its employers would continue to do quite well economically by expanding the family numbers throughout all categories. Furthermore, we do well to look beyond economic values and to consider the values that are important to us as a nation in terms of human rights, moral obligations, and social responsibility.
Somehow those of us who favor not only maintaining but expanding family-based immigration opportunities are viewed as soft on immigration. However, the experiment that we call America is a test of our character and our willingness to believe that we can have a strong country that is caring and diverse. Showing compassion and fairness in our immigration policies is not a sign of weakness. Rather, those traits demonstrate a confidence in a strong rule of law and system of government, but understand that moral obligations and family reunification are essential elements of a civil society. While these traits of a civil society may benefit individuals, they benefit us as a common community as well. For when an individual and their relatives have been enabled to become contributing members of society, we all benefit—socially, psychically, and economically.
"What Oath (if Any) Did Jacob Henry Take in 1809?: The Problem of Conceptual Confusion Between State Religious Tests and Religious Test Oaths"
SETH BARRETT TILLMAN, National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law
The story of Jacob Henry is one which has been told and retold. It has been long celebrated, as a triumph of light over darkness, and of the progress of then-emerging American religious tolerance over older traditions of parochialism and intolerance. Our story starts with Article 32 of the 1776 North Carolina Constitution. That provision imposed a religious test:
That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.
Article 32’s religious test extended to four categories of persons. It extended to atheists—those “who . . . deny the being of God.” It extended to non-Protestants—those “who . . . deny . . . the truth of the Protestant religion.” It extended to non-Christians—those “who . . . deny . . . the divine authority either of the Old or New Testaments.” Lastly, it extended to an amorphous category of persons—those “who . . . hold religious principles incompatible with the freedom and safety of the State.” A person falling into any of these four categories was not “capable of holding any office or place of trust or profit in the civil department within this State.” The meaning and scope of Article 32’s language has been a matter of continuing debate.
In 1809, Jacob Henry was elected to a second, consecutive annual term in the House of Commons, ie, North Carolina’s lower legislative house, as one of two members for Carteret County. According to the standard narrative, Henry was Jewish. Legislative elections were held during August 1809. The returning officers reported those persons who had been duly elected, that is, the members-elect. On November 20, 1809, the House of Commons convened in Raleigh, North Carolina, and the members-elect qualified by taking their oaths. On December 5, 1809, Hugh C. Mills, one of two members for Rockingham County, put forward a motion to declare Henry’s seat vacant based (at least in part) on Article 32 of the 1776 North Carolina Constitution. The next day, on December 6, 1809, Henry gave an impassioned speech in his own defense before the full House. Many ascribe the authorship of Henry’s speech, in whole or in part, to Judge Taylor, a Republican. Henry’s speech made no express reference to his being Jewish, and his speech did not use the words “Jewish,” “Judaism,” or “Jews.” Afterwards, Mills attempted to introduce evidence to support his allegations. But his efforts to do so were immediately thwarted by William Gaston, the single member for the town of New Bern.
Gaston argued that introducing evidence was premature at this stage. In other words, Gaston argued that Mills’s charges were insufficient as a matter of law, and so the introduction of evidence was not necessary. Gaston further argued that if the House determined that an investigation of the facts were necessary, then proceedings should be directed to a select committee or the committee of the whole. Additionally, Gaston made the argument that Article 32 reached only “offices,” not members of the legislature—and so it had no application to Jacob Henry. Gaston’s lengthy speech was followed by extensive debate among more than a few members of the Commons. Subsequently, the matter was redirected to the House’s Committee of the Whole, which heard testimony from witnesses. The committee recommended that the House reject the motion, and the House voted in favor of the committee’s recommendation. Henry kept his seat. Some reports indicate that the Commons voted unanimously to reject Mills’s motion.
The Jacob Henry literature has been primarily concerned with two questions. First, why did the members of the North Carolina House of Commons on December 6, 1809 vote against Mills’s motion to vacate Henry’s seat? That is, what motivated the members—in the sense of politics, partisanship, and personalities—to vote as they did? Likewise, what constitutional or other legal or policy rationales (if any) did the members put forward to explain their votes? A surprising number of very different views have been put forward. Second, what did Henry’s victory against purported religious intolerance mean to his contemporaries and later generations?
This Article addresses a different set of (albeit related) questions. The focus of this Article is not on what happened on December 5 and 6, 1809 and why the members of the North Carolina House of Commons voted as they did. Instead, the focus of this Article is on what happened on November 20, 1809—in other words, what legislative oath (if any) did Jacob Henry actually take? Second, how have later historians and legal commentators described and distorted our understanding of the events of November 20, 1809? And, third, why did the December 6, 1809 debate on the motion veer so far from any substantial discussion of the actual underlying events of November 20, 1809? Admittedly, this third question cannot be answered with clarity.
""Established Agreeable to the Laws of Our Country": Mormonism, Church Corporations, and the Long Legacy of America's First Disestablishment"
Journal of Law & Religion (Forthcoming)
NATHAN B. OMAN, William & Mary Law School
This article provides the first history of the Church of Jesus Christ of Latter-day Saints as a legal entity. It makes two contributions. First, this history recasts the story of the so-called “first disestablishment,” revealing that it was longer and more contentious than is often assumed. Disestablishment produced a body of corporate law encoded with strong theological assumptions. Because corporate law was the primary mechanism for regulating churches, this created problems for groups like Roman Catholics and Latter-day Saints who did not share the law’s theological commitments. Far from being settled in the early 1830s, the first disestablishment continued to spawn bitter legal battles into the late-nineteenth and early-twentieth centuries. Second, this article reveals legal personality as one of the key points of conflict between the Latter-day Saints and American society. This is a useful corrective to accounts that emphasize polygamy and theocracy as the points of legal contention. An understanding of the history of the Church as a legal entity supplements these stories by revealing how the hard-fought legal battles of the late-nineteenth century can be seen as an extension of the process of legal disestablishment that began during the American Revolution.