January 9, 2012 - LAW AND RELIGION FORUM

John D. Inazu (Washington University School of Law) has posted Justice Ginsburg and Religious Liberty. The abstract follows.

Justice Ginsburg has left an important mark on many areas of the Supreme Court’s jurisprudence, but she has written relatively little in the area of religion. This relatively small footprint increased significantly in the opinion that she wrote in the Court’s 2010 decision in Christian Legal Society v. Martinez. In particular, Martinez’s dismissal of the religious association claim at the center of the case dealt a severe blow to religious liberty advocates who have struggled to find alternate means of protecting religious expression in the twenty years since the Court’s decision in Employment Division v. Smith (which relegated to rational basis review free exercise challenges to generally applicable, neutral laws).

This essay examines three strands of Justice Ginsburg’s jurisprudence leading up to the opinion that she authored in Martinez: religion, government funding of expression, and equality. It first traces Justice Ginsburg’s religious liberty views through four facets of her legal career: her role as an advocate, her opinions on the D.C. Circuit, her Supreme Court nomination testimony, and her opinions and votes on the Supreme Court. It turns next to her views about government funding of expression, relying principally upon her dissent in DKT Memorial Fund v. AID. It then examines Justice Ginsburg’s longstanding commitment to principles of liberal equality. Finally, it considers the interplay of these three strands in Martinez, and offers three observations. First, because Martinez pitted religious liberty against liberal equality, it forced Justice Ginsburg to make a choice that prioritized one over the other and may have caused her to overlook some of the religious dimensions of the case. Second, Justice Ginsburg’s previous views about government funding of speech should have caused her greater concern over the implications of unconstitutional conditions in this case. Third, Martinez ultimately failed to address the values clash directly, relying instead on doctrinal intricacies that detracted from the core issues raised in this case.

Chapin Cimino (Drexel University – Earle Mack School of Law) has posted Campus Citizenship and Associational Freedom: An Aristotelian Take on the Nondiscrimination Puzzle. The abstract follows.

Student expressive association on campus is a thorny thicket. Student affinity groups often choose to organize around a shared principle or characteristic of the groups’ members, which, by definition, makes those students different in some way from their peers. In order to preserve the group’s sense of uniqueness, these groups often then wish to control their own membership and voting policies. They feel, in essence, entitled to discriminate — a right arguably embodied by the First Amendment freedom of expressive association. When campus groups actually exercise this right, however, they run into university anti-discrimination policies, which can cost them official campus recognition. Thus, in the name of one important value, schools trample on another: campus citizenship. Both nondiscrimination and campus citizenship are values of equality.

At this moment, whose notion of equality is to prevail? Is it the university’s, taking the form of a blanket nondiscrimination policy? Or is it the student group’s, taking the form of the desire to maintain both associational freedom and campus citizenship?

Current First Amendment doctrine is ill-equipped to resolve the tension between these competing values, or “ends.” It is ill-equipped because any traditional First Amendment test is written to consider only one “end” — the end of the regulator. This was true prior to the Supreme Court’s June 2010 decision in Christian Legal Society v. Martinez. Read more