The Narrow and Shallow Bite of Romer and the Eminent Rationality of Dual-Gender Marriage: A (Partial) Response to Professor Koppelman

In this response to Professor Koppelman, Professor Duncan takes issue with the assertions Koppelman makes in Romer v. Evans and Invidious Intent. Though Duncan agrees with Koppelman\u27s summary of the rule of Romer and the ongoing effects of Bowers v. Hardwick, he rejects Koppelman\u27s claims that laws that discriminate against gays will always be constitutionally doubtful because they disadvantage an unpopular class. Duncan claims that Koppelman has tried, without success or authority, to fill in the missing pages left in Romer by the Supreme Court. Finally, he argues that traditional marriage laws are valid and will survive under Romer and rational basis analysis

The Clearest Command of the Establishment Clause: Denominational Preferences, Religious Liberty, and Public Scholarships That Classify Religions

The purpose of this article is to analyze the Supreme Court\u27s doctrine prohibiting denominational preferences with a view toward mapping out the boundaries of the doctrine in light of its animating principle of free religious competition. I will then attempt to apply the clearest command of the Establishment Clause to the facts of a recent free exercise decision of the Court, Locke v. Davey. Although the Court in Davey rejected a free exercise challenge to a state scholarship program that denied funding to students pursuing college degrees in devotional theology, I will suggest that this exclusion creates a denominational preference that appears to violate the Establishment Clause and the teachings of Larson. Indeed, I will argue that Larson applies with particular force in cases in which religious lines are drawn by funding laws in which the benefit if applied uniformly to all religions would comply with the Establishment Clause

A Piece of Cake or Religious Expression: Masterpiece Cakeshop and the First Amendment

Sadly, religious liberty has become a matter of great controversy and division in our society. Although not so many years ago there was a nearly unanimous, bi-partisan consensus supporting the legal protection of religious liberty from laws substantially burdening the free exercise of religion, irreconcilable differences among us over contraception, abortion, sexuality, and the nature of marriage have made religious liberty a divisive partisan issue. Although most religious liberty cases concern religious minorities whose religiously-motivated conduct has been disregarded “by an insensitive majority,” a handful of cases involving Christian-owned businesses and ministries claiming a religious liberty right to refuse to supply contraceptives and abortifacients to their students and employees or goods and services for same-sex marriages have led progressives to turn their backs on religious liberty. As Professor Laycock puts it, progressives “persist in demanding not only the right to live their own lives by their own values, but also the right to force religious objectors to assist them in doing so.” As a result, “[r]eligious liberty is at risk” wherever progressive elites are in power. Onto this desolate stage strode Jack Phillips, a wedding cake artist who deeply and reasonably believes “that ‘God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.’” Phillips considers his wedding cakes artistic expression celebrating the beauty of marriage as God designed marriage. Jack Phillips is a man of deep and sincere conscience. His conscience will not permit him to use his artistry to celebrate an event that is not consistent with his understanding of God’s truth. He should not be treated like an outlaw by his government

Free Exercise Is Dead, Long Live Free Exercise: \u3ci\u3eSmith\u3c/i\u3e, \u3ci\u3eLukumi\u3c/i\u3e and and the General Applicability Requirement

The purpose of this article is to analyze and theorize about the general applicability standard and its impact on the free exercise of religion. At the end of the day, I will argue that free exercise is alive and well in the wake of Smith and (particularly) Lukumi

Why School Choice Is Necessary for Religious Liberty and Freedom of Belief

The government school monopoly for funding K–12 education creates a coercive system that commandeers a captive audience of impressionable children for inculcation in secular ideas, beliefs, and values concerning matters of truth, moral character, culture, and the good life. The brutal bargain imposed on parents by this monopoly requires them to choose between the single largest benefit most families receive from state and local governments and educating their children in a curriculum that is consistent with the preferred educative speech of the parents. To choose the latter is to sacrifice hundreds of thousands of dollars of tax-funded support for K–12 education. This coercive, take-it-or-leave-it system of funding education is inconsistent with both the letter and the spirit of the Free Speech Clause and the Free Exercise Clause. As John Stuart Mill observed, it results in a despotism over the hearts and minds of our precious offspring and eradicates the right of parents to control the education of their children. It violates the spirit of freedom of speech by forcing parents to substitute the preferred viewpoints of government officials for their own concerning fundamentally important ideas about history, government, justice, sexuality, gender identity, and many other topics arising in the course of K–12 education. Moreover, because the government school curriculum is strictly secular, this funding monopoly inherently forces religious parents to choose between their faith and their ability to afford to educate their children. Such religious discrimination is odious to both the letter and spirit of the Free Exercise Clause. However, the Supreme Court has made clear that the government may adopt a “strictly secular” curriculum in the public schools and has no obligation to fund private K–12 schools. So, at least for the foreseeable future, the Court’s First Amendment jurisprudence will not relieve parents of the brutal bargain imposed on them by the government school monopoly. Thus, in the short term, parents must look to federalism and foot voting to achieve at least some degree of school choice. Many states have begun to enact at least some financial assistance supporting educational choice. What is more, one state— Arizona—has enacted legislation funding educational choice for every family in the state. As support for the school choice movement grows in many states, families who live in these states will have access to the support they need to help pay the cost of educating their children in schools of their choice. Importantly, many families may choose to vote with their feet by relocating from monopoly states to states that support educational choice. We live in a very mobile society, and people move from one state to another for many reasons. For many families, moving to states that support school choice may be the best reason of all to vote with their feet. At the very least, it should be one important factor when families decide which job offers to accept and which to reject. The hearts, souls, and minds of our children matter a great deal, and parents should always do what they believe is best to train up their children in the way they should go. To end this Article where it began, the letter and spirit of the First Amendment deeply values freedom of religion, thought, and belief formation. If these values are to survive in our deeply divided, pluralistic Nation, parents must be free to choose an appropriate education for their children, without having to sacrifice the benefit of public funding of education. To put it succinctly, educational funds should be directed to children and their parents, not to strictly secular government schools. School choice is the civil rights and civil liberties issue of this present age, and one way or another—either in the courts or in the states—we need to get there

Who Wants to Stop the Church: Homosexual Rights Legislation, Public Policy, and Religious Freedom

Religions that make peace with the spirit of the age have little to fear from the rulers of the day. But believers who refuse to adapt their religious practices to the Zeitgeist are vulnerable under Smith, unless the Court decides to protect religious pluralism by giving full scope to Smith\u27s exceptions. I have tried to show that homosexual rights legislation imposes heavy costs on the right of employers and landlords to take character into account when making business decisions. These costs are particularly heavy when borne by religiously-motivated persons, who are declared outlaws merely for trying to obey God in the conduct of their businesses. As Professor Laurence Tribe once stated in a different context, the power to reinforce one type of relationship must not extend to an authority to stamp out another. Homosexuals are not similarly situated to racial and ethnic minorities and other groups protected by antidiscrimination laws, both because homosexuality remains a matter of moral controversy and because homosexuals have not been economically impoverished by pervasive and invidious discrimination. Therefore, the effect of homosexual rights legislation is primarily symbolic-the values of the sexual revolution are codified and legitimized (and inconsistent world views are correspondingly marginalized). I believe the costs of homosexual rights laws are too high, and I see no benefit even remotely worth the cost. These laws should not be passed and, where passed already, they should be repealed. I have also tried to show that even under Smith (as properly understood) most homosexual. rights laws are unconstitutional when enforced against employers and landlords wlho make distinctions on the basis of religious beliefs concerning sexual morality. Typical homosexual rights laws are neither neutral nor generally applicable. And, at least on occasion, these laws burden Smith-hybrid rights. Therefore, they must undergo the most rigorous of scrutiny when challenged by religiously-motivated actors. These laws cannot pass strict scrutiny, because they are not necessary means of achieving compelling governmental ends. If I am wrong and the Court allows homosexual rights laws to be enforced against religiously-motivated actors, it could be the beginning of the end for religious pluralism in America. Religions that are willing to follow the advice of MTV and free their minds by accepting homosexuality, bisexuality, and cohabitation as lifestyles that are pleasing to God will find favor with Caesar. However, those religions that stubbornly cling to old fashioned beliefs about sexual morality and marriage between husband and wife will thrive once again in the catacombs