Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Gasparoff v. Watch Tower Bible & Tract Society of Pennsylvania, an Arizona federal district court dismissed a pro se complaint that challenged Jehovah’s Witnesses’ beliefs regarding blood transfusions.
  • Suit was filed in a New York federal district court by five Orthodox Jews and one Catholic man challenging New York City’s “Key to NYC” program, which mandates COVID vaccination in a variety of social contexts. Plaintiffs contend that they have religious objections to the COVID vaccine, and some of the Plaintiffs raise unique religious objections not commonly raised in past litigation.
  • A Christian nurse practitioner formerly employed at a CVS Pharmacy in Texas has filed a religious discrimination complaint with the U.S. Equal Employment Opportunity Commission. The complaint alleges the company illegally discriminated against her on the basis of her religious beliefs about contraception.
  • A new Chinese law, Measures for the Administration of Internet Religious Information, is set to take effect on March 1, 2022. The law will impose new restrictions on online religious content and will essentially outlaw evangelistic Scripture.
  • The Southern Indian state of Karnataka’s top court has stepped in to hear petitions filed by Muslim students after several government-run educational institutions have banned Muslim female students from wearing hijabs.

Calabresi and Salander on Religion and the Equal Protection Clause

Here’s an important new paper,  Religion and the Equal Protection Clause, arguing that the Fourteenth Amendment independently forbids state action that discriminates on the basis of religion, even without incorporation of the First Amendment’s Establishment and Free Exercise Clauses. Steve Calabresi (Northwestern) and a student co-author defend this novel claim by looking to the Fourteenth Amendment’s original meaning. They also reference trends in foreign constitutional and international human rights law. (Originalism and comparative constitutionalism – there’s an unusual combination). The wide-ranging and provocative paper also argues that public education, as currently funded, is unconstitutional. Here’s the abstract:

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter on the basis of religion. We defend our argument that the Fourteenth Amendment bans Read more

Rienzi on the Constitutional Right Not to Kill

Mark Rienzi (Catholic U. of America, Columbus School of Law) has posted The Constitutional Right Not to Kill. The abstract follows.

Federal and state governments participate in and permit a variety of types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings.

The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the Supreme Court’s 1990 decision in Employment Division v. Smith.

This Article offers a new answer to this very old question: a federal constitutional right not to kill, protected by the Due Process Clauses of the Fifth and Fourteenth Amendments.

The Court’s substantive due process cases suggest that certain unenumerated rights can qualify for constitutional protection when they are “deeply rooted in the Nation’s history and traditions.” Read more