Helen M. Alvare, Article: Church Autonomy after Our Lady of Guadalupe School: Too Broad? Or Broad as it Needs to be?, 25 Tex. Rev. Law & Pol. 319 (2021)
A common criticism of, or concern about, the "ministerial exception" doctrine ... is that, in some cases, it operates to prevent employees who have been treated badly from seeking a legal remedy and insulates from legal oversight a religious employer's unjust decision. This is true. It is also true, of course, that our Constitution's rules of criminal procedure sometimes result in guilty offenders not being convicted and that our free-speech guarantee protects expression that is nasty, offensive, foolish, or worse. The premise of the church-autonomy principle is not that religious organizations do not sometimes behave badly. Certainly, they do. And they should be criticized, from within and from without, when they do. But not all wrongs are, or should be, redressable through civil litigation or by secular political power. 315
Guadalupe surely portends a broad application of the church autonomy doctrine. It is difficult or even impossible to conclude otherwise, due to the majority opinion itself and the theological and empirical materials shared in Parts III and IV above. The future of the doctrine, however, seems uncertain, especially given today's fraught contest between religious freedom and fast-developing sexual expression laws and regulations. 316The future "good behavior" of judges and religious institutions will matter.
Ronald J. Colombo, The Past, Present, and Future of Christian ADR, 22 Cadozo J. Conflict Resol. 45 (2020)
Many religious traditions recommend (if not require) that their adherents bring some if not all of their disputes with co-adherents before a religious tribunal for resolution. The Christian religious tradition is no exception. That said, the dramatic history of the Church in the West, from that of a persecuted Jewish sect, to the official state religion of Imperial Rome, to an international authority competing with that of local monarchs, to its modern status of merely tolerated, has yielded a variety of evolving perspectives on the question of intra-faith dispute resolution within Christianity. This article examines that question and the historical answers given thereto by Christian theologians over the past two millennia. In its final sections, this article explores the constitutional parameters circumscribing the modern practice of religious ADR and engages in some prognostication about the future of religious ADR.
Christian Edmonds, The Religious Underpinnings of the Fourth Amendment, 25 Tex. Rev. Law & Pol. 473 (2021)
IT is paramount that the intent of the Fourth Amendment - to function as a barrier to government overreach and as a catalyst for other constitutional rights 268- stand tall amidst all social and governmental pressure to stray wayward. The government has no right under any circumstances to meddle in the private property of faith leaders because of the past, present, and possibly future understanding that religion is special and should be protected as such.
Tory L. Lucas, Greed and the Seven Deadly Sins: Treacherous for the Soul and Legal Ethics , 33 Regent U. L. Rev. 113 (2020-2021)
As religious, philosophical, and cultural ideas, the Seven Deadly Sins occupy a common understanding of the worst behaviors that plague human relationships. Pride. Greed. Lust. Envy. Gluttony. Wrath. Sloth. Not exactly the traits that you seek in mutually beneficial relationships! Striving for universal appeal, this novel Article presents the Seven Deadly Sins as a useful construct to explain why lawyers commit major ethical violations. The underlying premise is that one or more of the Seven Deadly Sins lies behind every major ethical violation. Focusing on greed specifically, this Article demonstrates how greed first enters one's thoughts to acquire wealth. As a lawyer feeds on greedy thoughts, the lawyer becomes bigger while others--most significantly, the client--become smaller. From the greedy lawyer's vantage, "I" grows far larger than "you." As the insatiable desire to acquire more wealth burns hotter, even at the expense and to the harm of others, the lawyer is consumed by greedy thoughts until greedy conduct ignites. As greed fuels the lawyer to relentlessly pursue more wealth, the lawyer's ability to recognize greed's impact on others is diminished. Predictably, greedy conduct inevitably harms others. This Article contends that lawyers can utilize the Seven Deadly Sins as a compelling construct to comprehend what drives greedy and harmful conduct. This construct will equip lawyers to travel a virtuous path that leads away from ethical misconduct and its catastrophic consequences to clients.
Allison H. Pope, Note: "Of Substantial Religious Importance": A Case for a Deferential Approach to the Ministerial Exception, 95 Notre Dame L. Rev. 2145 (2020)
Civil courts must defer to the religious group's determination of whether its employee served an important religious role. Otherwise, civil factfinders would be involved in the evaluation of religious doctrine, because the religious importance of an employee's role can only be determined by the application of religious doctrine. This government evaluation of religious doctrine would infringe on the religious group's free exercise rights and violate the Establishment Clause. In its upcoming ministerial exception cases, Biel and Our Lady of Guadalupe School, the Supreme Court should provide a clearer definition of "minister" and call for deference to a religious group's determination of which of its employees play a role "of substantial religious importance."
Patrick E. Reidy, C.S.C., Condemning Worship: Religious Liberty Protections and Church Takings, 130 Yale L. J. 226 (2020)
Recent eminent-domain actions against houses of worship ("church takings") along the Mexico-U.S. border have inspired new questions about religious liberty and land use. This Note explores how courts interpret constitutional and statutory religious liberty protections when the government seeks to condemn property owned by faith communities, revealing how courts discriminate between types of religious property. While protecting those structures in which faith communities gather for worship, courts allow condemning authorities to take other properties integral to communities' religious missions. Courts thus transform houses of worship into paradigmatic property for the free exercise of religion.
Charles J. Russo, M.Div., J.D., Ed.D. and William E. Thro, M.A., J.D, The Demise of the Blaine Amendment and a Triumph for Religious Freedom and School Choice: Espinoza v. Montana Department of Revenue, 46 Dayton L. Rev. 131 (2021)
Espinoza has the potential to play a major role in helping to end what former President George W. Bush described as the "soft bigotry of low expectations." 245This "soft bigotry" condemns many children, especially those from economically deprived backgrounds, to attending low-performing schools from which they have little, if any, chance of succeeding academically and beyond, denying them, their parents, and families opportunities to participate in the seemingly elusive "American Dream." Espinoza thus represents a significant step toward achieving the as of yet unfulfilled promise of Brown v. Board of Education's equal educational opportunities for all of America's children and their families, regardless of their races, creeds, ethnicities, genders, socioeconomic or immigration statuses, or (dis)abilities. 246 Brown's goal of equal educational opportunities for all children and their families is one well worth pursuing, perhaps now more than ever before in the nation's history.
John Witte, Jr. Back to the Sources? What's Clear and Not So Clear About the Original Intent of the First Amendment, B.Y.U.L. Rev. 1303 (2022)
Neither originalists nor their critics will be fully satisfied with what this careful text-sifting of the sources of the First Amendment has yielded. In 2008, at a conference organized by the United States Court of Appeals for the Fifth Circuit, I had the privilege to present the foregoing account at a conference dinner with the most famous of originalists, Justice Antonin Scalia. He listened with more patience than I deserved, as I worked through the data and ventured my speculations on what's clear and not so clear about the original understanding of the First Amendment religious freedom clauses. After a few shrewd and pointed questions, and a few "hmmm's," "interesting's," and even one "that's very intriguing!" he concluded: "Well, you have now cast reasonable doubt in my mind. I'll need to look at the sources again."
