Eugene Volokh's Blog, page 39

[Mark Movsesian] The Collapse of Consent

[Can "Consent of the Governed" Sustain a Fractured Society? ]

On the latest episode of Legal Spirits, I speak with legal scholar Steve Smith (University of San Diego) about a foundational principle of American law and politics: "the consent of the governed."

That phrase, which goes back to the Declaration of Independence, has long served as a central justification for our constitutional order. Our government is legitimate, we tell ourselves, because, as a free people, we have agreed to it. But in a society that is politically polarized, can consent still do the work that is required of it? Can we continue to ground legal and political authority in a story that fewer and fewer Americans believe?

Drawing on his new paper, The Collapse of Consent, Steve and I explore how the idea of consent has shifted over time—from a condition that limited a government that was itself based on God-given or natural rights to a secular source of legitimacy that stands on its own. Consent was always a legal fiction, Steve argues--but it's no longer as "truish" as it once was, in a time of cultural fragmentation and institutional mistrust.

Steve and I also talk about some intellectual trends that have contributed to the breakdown in the concept of consent, including the rise of critical and identitarian theories in the academy and polarization in political life. We also ask what might come next. Is technocracy the new paradigm? Integralism?

You can listen to the full episode here.

The post The Collapse of Consent appeared first on Reason.com.

[Luke Goodrich] Religious Hiring and Title VII's Religious Exemption

[A textualist solution to controversies over religious hiring.]

May a religious group legally fire a non-ministerial employee (like a secretary or janitor) for violating the group's religious beliefs about sex or marriage? As I explained yesterday, this is the question presented in a spate of recent cases and likely heading to the Supreme Court. It is also the question addressed in my forthcoming article in the Notre Dame Law Review, Religious Hiring Beyond the Ministerial Exception. In it, I set forth the arguments for and against six potential legal protections for the religious hiring of non-ministers.

In today's post, I'll make the case for what I believe is the most straightforward defense available in these cases: Title VII's religious exemption. Under a plain reading of that exemption, religious groups have the right to limit hiring to employees who share their particular religious beliefs, observances, and practices—including their beliefs and practices about sex and marriage.

Title VII's Text

Although Title VII prohibits sex discrimination in employment, it also includes a religious exemption: "This subchapter shall not apply … to a religious [organization] with respect to the employment of individuals of a particular religion…"

There are two competing interpretations of this exemption. Some courts interpret it narrowly to apply only when a plaintiff brings a claim of religious discrimination—not when a plaintiff brings a claim of sex, race, or national-origin discrimination. I call this the claim-based approach, because it focuses on the nature of the employee's claim.

Other courts interpret the exemption more broadly to apply to any claim of discrimination where the religious organization has engaged in specific, exempted conduct—namely, employing individuals of a particular religion. I call this the conduct-based approach, because it focuses on the employer's conduct rather than the employee's claim. This approach, I argue, is more faithful to Title VII's text.

The Textual Argument

Consider, for example, a case where a religious school dismisses a secretary for entering a same-sex marriage, and the secretary sues for sex discrimination. Does the religious exemption apply?

The textual argument for applying the exemption is simple.

First, the exemption provides that "[t]his subchapter shall not apply" to whomever and whatever falls within the exemption. The "subchapter" referenced is all of Title VII—not one subset of Title VII claims.

Next, the text identifies to whom Title VII shall not apply—"a religious [organization]"—and to what activity of a religious organization it shall not apply—"the employment of individuals of a particular religion."

The key question then becomes: What does is it mean for a religious organization to employ "individuals of a particular religion"? On that question, Title VII provides additional clarity by expressly defining "religion": "The term 'religion' includes all aspects of religious observance and practice, as well as belief…."

Thus, putting it all together, the exemption provides that all of Title VII "shall not apply" when a religious organization employs "individuals of a particular" "religious observance" "practice" or "belief."

This means, of course, that religious groups are free to employ only individuals who share their particular religious beliefs—such as belief in the doctrine of the Trinity. But it also means religious groups are free to employ only individuals who share their particular religious observances and practices—such as refraining from sex outside of traditional marriage. As several courts have said, the exemption "include[s] the decision to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer."

If Congress had wanted to limit the religious exemption to religious-discrimination claims, it could have said, "This subchapter shall not apply to a religious [organization] with respect to claims of religious discrimination arising from the employment of individuals of a particular religion …" But it framed the exemption not in terms of the plaintiff's claim ("claims of religious discrimination"), but in terms of the employer's conduct ("employment of individuals of a particular religion").

This understanding of the religious exemption is confirmed by the use of similar language in the religious exemption in the Americans with Disabilities Act (ADA). The ADA's religious exemption provides: "This subchapter shall not prohibit a religious [organization] from giving preference in employment to individuals of a particular religion." If the narrower, claim-based interpretation of Title VII's religious exemption were correct, then the ADA's religious exemption would be superfluous, because the ADA doesn't authorize claims of religious discrimination; it authorizes only claims of disability discrimination. The same is true of the Pregnant Worker's Fairness Act, which expressly incorporates Title VII's religious exemption, but doesn't allow for religious-discrimination claims.

Counterargument

Courts that have adopted the narrower, claim-based approach have done so primarily based on policy concerns. In particular, these courts have warned that the conduct-based approach would "swallow Title VII's rules" on race and sex discrimination and permit odious practices like "terminat[ing] an employee who married someone of a different race."

But this misunderstands the conduct-based approach. Under that approach, religious groups remain subject to race- and sex-discrimination claims whenever they make an employment decision based on anything other than the employee's religious beliefs, observances, or practices. So if a group says the employment decision was based on poor performance—or tardiness, budgetary reasons, personality fit, lack of technological savvy, etc.—it can be sued for race and sex discrimination.

Even if a group says the employment decision was based on the employee's religion, the religious exemption still doesn't apply if the religious reason was pretextual. And beyond Title VII, any organization engaging in race discrimination is subject to damages under Section 1981, loss of federal funding under Title VI, and loss of tax-exempt status—all without any religious exemption.

On the other hand, strong policy considerations support the conduct-based approach. Tens of thousands of religious organizations have long asked their employees to share their religious beliefs and practices—including traditional beliefs on sex and marriage. This has long been permissible. And the Supreme Court in Obergefell said these organizations should receive "proper protection as they seek to teach" and "advocate with utmost, sincere conviction" that "same-sex marriage should not be condoned." But the narrow, claim-based approach would do the opposite—subjecting all these organizations to liability and making it impossible to form religious groups around traditional religious beliefs and practices regarding sex and marriage.

Precedent

Since Bostock, no court of appeals has yet ruled on the scope of Title VII's religious exemption. However, Bostock itself seems to lend support to the broader, conduct-based view. There, the Court highlighted Title VII's "express statutory exception for religious organizations" as one of several "doctrines protecting religious liberty" that may apply in "future cases" involving sex discrimination. And it would make little sense for the Court to highlight this exemption in a sex-discrimination case if it believed it had no application to sex-discrimination claims.

Since Bostock, too, three federal appellate judges (Judges Easterbrook and Brennan on the Seventh Circuit, and Judge King on the Fourth) have issued concurring opinions on Title VII's religious exemption. All three have argued that the conduct-based approach is the most "straightforward reading" of the text.

What Comes Next? Pivoting to State Courts

If and when this issue reaches the Supreme Court, I strongly suspect the Court will adopt the conduct-based approach, as it follows directly from Title VII's text and structure. However, adopting the plain meaning of Title VII's religious exemption won't resolve this entire genre of cases.

Due in part to Title VII's strong religious exemption, some plaintiffs have started bringing their employment-discrimination claims in state court under state law. And while most states have statutory religious exemptions that parrot Title VII's or are even broader, at least two state supreme courts—Washington and Maryland—have recently gutted their statutory religious exemptions, holding that they don't apply to the hiring of non-ministers.

This means that when a non-minister sues for employment discrimination under state law, there may be no statutory defenses available. The only defenses, then, will have to be based on the Constitution.

My next two posts will lay out the arguments for and against two of the leading constitutional defenses: the doctrine of church autonomy and the freedom of expressive association.

The post Religious Hiring and Title VII's Religious Exemption appeared first on Reason.com.

[Eugene Volokh] Center for Individual Rights Looking for Individual Rights Litigator

I've long followed and much admired CIR's work; Rosenberger v. Rector (free speech) and U.S. v. Morrison (federalism) are two prominent examples over the years, but you can see some of their other cases here. I've also just recently joined their Board of Directors. They're hiring, and I thought I'd pass along the details:

Washington, DC (Preferred) or Hybrid  Wanted:

Litigators with 3-5 years of experience who want to channel their talent, skills, and passion into protecting individual rights from government abuse.

About CIR:

CIR is a premier, nonprofit public interest law firm dedicated to defending individual liberties against state and federal government abuses. With nine Supreme Court appearances and many other landmark victories in our storied history, we continue to select cases strategically to establish enduring constitutional precedents with broad applications while also influencing public policy and a wider cultural discourse.

After 36 years, CIR is accelerating the growth of our operations and tightly aligned team. We are committed to the principle that America's founding documents and post-Civil War amendments represent the fullest realization of Enlightenment ideals—with a charter of limited and divided government and other protections for individual rights that are the envy of the world.

Our proud public mission is to establish landmark precedents to strengthen and restore these individual rights essential for a free and flourishing society. In sum, CIR team members are principled, zealous advocates committed to restoring that constitutional charter and its attendant benefits.

Are you ready for more meaningful work?

About the Role

CIR seeks Individual Rights Litigators with 3-5 years of active litigation experience (including any judicial clerkships) to help incubate, execute, and win major landmark victories that defend, expand, and entrench individual liberties.

CIR's ideal candidates will demonstrate:

Strong alignment with CIR's mission and a passion for advancing individual liberty;A deep knowledge of constitutional law and its central role in our mission;Entrepreneurial skills to develop and execute litigation strategies;Ability to identify specific opportunities for consequential litigation;A commitment to client and public interest case development;A collaborative approach in working with attorneys inside and outside the organization, clients, and prospective clients;Interest in all aspects of public interest law; andCreativity and drive to be a constructive change agent, helping CIR continually improve and increase its impact in a competitive environment.

Individual Rights Litigators will work directly with CIR's senior leadership to expand and advance its litigation practice areas, including complex anti-discrimination reforms, free speech and privacy cases, along with its Project to Restore Competitive Federalism.

This is a growth position: Individual Rights Litigators will be mentored and trained to work primarily on cases they help develop. Over time, Individual Rights Litigators will be expected to serve as CIR spokespersons on select cases and related substantive matters with the media, in coalition gatherings, and in academic settings.

In sum, CIR's litigation team will develop and win landmark cases, which often require setting the stage for broad reform with publications, media appearances, public advocacy, and coalition building, and establishing litigators as sought-after national spokespersons for individual rights.

Necessary Qualifications

Three to five years of active litigation experience (including judicial clerkships), with a meaningful record of advancement. Judicial clerkships and experience in public interest law are strong advantages.Demonstrated passion for promoting individual liberty and a deep understanding of its constitutional foundations.Exceptional legal research, writing, and oral advocacy skills, plus the ability to communicate persuasively for both legal and non-legal audiences.Exemplary planning and organization skills, including meticulous attention to detail.Excellent time-management skills to advance multiple cases and handle dynamic, fast-moving situations.Collaborative spirit, combined with a sense of humor to challenge government malefactors in a relentless and disciplined manner without forgetting the bright side of life.Willingness to travel for client and case development, litigation appearances, and other institutional purposes.

General Information:

CIR's headquarters are in Washington, DC, but we have embraced some flexible and hybrid work arrangements. The ideal candidate would work from CIR's DC office on a regular schedule. Remote work may be possible for exceptional candidates. The amount of time Individual Rights Litigators spend in the DC office depends on various factors and is subject to individual discussion.

This is a full-time, permanent position. CIR is an equal opportunity employer, offering a generous compensation package that includes competitive salary, premium medical and dental insurance, employer-paid retirement contributions, and other attractive benefits. CIR takes pride in its employees and encourages continuous professional growth, a meaningful personal and family life, and the pursuit of other intellectual and creative endeavors.

The projected salary range for this position is $110,000-$140,000. We are willing to explore higher compensation for candidates with exceptional records or experience.

To Apply:

Qualified candidates should submit the following application materials (in order) in one PDF document:

Cover letter explaining why you meet each qualification listed above, why you want a career defending liberty against government overreach, and what sets you apart from other applicants, especially with regard to your strategic ability to advance CIR's mission. The letter should specify if you are willing to work in CIR's office on a regular basis.Resume including your educational and professional experience and a list of publications; and10-page writing sample reflecting your original work and demonstrating your best legal analysis and writing abilities, with minimal editing by others or AI.

Applications and questions can be directed to CIR's recruiters for this role, Steadfast, by emailing info@steadfast.us.

There is no application deadline for this position. Applications are accepted on a rolling basis. This position will remain posted until filled.

While we thank all applicants in advance for their interest in this position, we are only able to contact those to whom we can offer an interview. Only direct applications will be considered. No phone calls, please.

The post Center for Individual Rights Looking for Individual Rights Litigator appeared first on Reason.com.

[Eugene Volokh] Restricting Open Carry of Guns Constitutional if Concealed Carry Allowed

From Friday's decision by Judge William Smith (D.R.I.) in O'Neil v. Neronha:

[W]hile Bruen held that the Second Amendment's plain text protects "carrying handguns publicly for self-defense," it did not go so far as to declare that the text requires open carry. See Baird v. Bonta, 709 F. Supp. 3d 1091, 1125 (E.D. Cal. 2023).

But the Court need not dive too deeply into this question because, even assuming the text covers open carry, Defendants' application of the Firearms Act to regulate Plaintiffs' manner of public carry is within the Nation's historical tradition of regulation…. [In Bruen], the Supreme Court concluded that "[t]he historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation." And it drew that conclusion, in part, from its finding that historically, "States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly." The Firearms Act, through its permitting structure, does just this, albeit in reverse: it regulates Plaintiffs' manner of public carry in that it limits their right to open carry but leaves unaffected their right to concealed carry.

Plaintiffs make much of the fact that the Act's permitting structure reverses common historical regulations allowing open carry and limiting concealed carry. But the Second Amendment is not "a law trapped in amber." U.S. v. Rahimi (2024). Per the Supreme Court's direction in Rahimi, "[a] court must ascertain whether the new law is 'relevantly similar' to laws that our tradition is understood to permit, 'apply[ing] faithfully the balance struck by the founding generation to modern circumstances.'" In doing so, the Court concludes that Defendants' application of the Act's permitting structure to Plaintiffs is relevantly similar to historical regulations, and thus consistent with the Second Amendment.

{The Court's decision rests on the binding precedent set by the Supreme Court in Bruen and Rahimi. Thus, the Court need not undertake its own review of historical laws regulating the public carry of firearms.}

For more on this sort of analysis, which focuses on the magnitude of the burden on the constitutional right, see my Implementing the Right to Keep and Bear Arms After Bruen (NYU L. Rev. 2023), pp. 1956-61 (though that article doesn't discuss the question whether a restriction on open carry is indeed a sufficiently mild burden):

Bruen Leaves Room for Upholding Restrictions that Only Modestly Burden the Right to Bear Arms

Bruen did not foreground the burden threshold for right-to-bear-arms violations the way it stressed the scope inquiry. But the Court did suggest that some arms restrictions would indeed be constitutional on the grounds that they impose only modest burdens. This is particularly clear in footnote nine of the majority's opinion, which upheld licensing requirements for carrying guns:

Because [forty-three states' "shall-issue"] licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent "law-abiding, responsible citizens" from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, "law-abiding, responsible citizens." And they likewise appear to contain only "narrow, objective, and definite standards" guiding licensing officials …. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.

Of course, licensing requirements do interfere in some measure with the right to carry guns: They impose at least some "wait times" and some "fees." Nor did the Court suggest that longstanding tradition or history supported such licensing requirements.

Rather, the Court apparently reasoned that a modest burden, which does not "prevent" the exercise of the right, would be constitutional, at least so long as it serves the traditionally recognized government interest in "ensur [ing] … that those bearing arms … are … 'law-abiding, responsible citizens."' Modest, "[non-]exorbitant fees" would be constitutional, as would "[non-]lengthy wait times."

And this inquiry into the magnitude of the burden is reflected in the Court's more general discussion. The Court stressed that restrictions on public carrying significantly burden the right to keep and bear arms for self-defense: "After all, the Second Amendment guarantees an 'individual right to possess and carry weapons in case of confrontation,' and confrontation can surely take place outside the home." Self-defense has to take place where the "self" happens to be; because of this, restrictions on carrying outside the home concretely burden the right, and that concrete burden (coupled with the right's historical scope) helps explain why the right to bear arms extends outside the home.

Yet the Court distinguished some historically recognized gun controls on the grounds that "[n]one of these restrictions imposed a substantial burden on public carry analogous to the burden created by New York's restrictive licensing regime." "[T]he burden these surety statutes may have had on the right to public carry was likely too insignificant to shed light on New York's proper-cause standard." Indeed, the burden inquiry might be part of the historical scope of Second Amendment protection: American right-to-bear-arms law has reasoned that not all regulations amount to unconstitutional prohibitions for over 150 years, with only a few departures.

{See, e.g., Owen v. State, 31 Ala. 387, 388 (1858) ("That section was not designed to destroy the right, guarantied by the constitution to every citizen, 'to bear arms in defense of himself and the State'; nor to require them to be so borne, as to render them useless for the purpose of defense. It is a mere regulation of the manner in which certain weapons are to be borne …."); Aymette v. State, 21 Tenn. 154, 159 (1840) ("[A]lthough this right must be inviolably preserved, yet it does not follow that the Legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed.").

For one such departure, see Bliss v. Commonwealth, 2 Litt. 90, 91-92 (Ky. 1822), which struck down a ban on concealed carry even though open carry was allowed, reasoning that "whatever restrains the full and complete exercise of [the right to bear arms], though not an entire destruction of it, is forbidden by the explicit language of the constitution."}

In considering the magnitude of the burden, Bruen builds on the analysis in Heller, where the Court struck down the handgun ban in part because of how burdensome it was: "Nothing about [Framingera] fire-safety laws"—the laws that the dissent points to as evidence that the right to bear arms should be read as allowing handgun bans—"undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents." Likewise, in distinguishing the handgun ban from colonial laws that imposed minor fines for unauthorized discharge of weapons, the Heller Court pointed out that the colonial laws "provide no support for the severe restriction in the present case."

Earlier in the Heller opinion, the Court similarly justified striking down the handgun ban on the grounds that the ban was a "severe restriction." In the process, the Court favorably quoted an old case distinguishing permissible "regulati[on]" from impermissible "destruction of the right" and from impermissible laws that make guns "wholly useless for the purpose of defence." And the Court's explanation of why the handgun ban is unconstitutional even if long guns are allowed is likewise consistent with an inquiry into how substantially a law burdens the right to bear arms:

It is no answer to say … that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

The Court is pointing out that handguns are popular for a reason: They are often the optimal self-defense tool, so bans on handguns make self-defense materially more difficult. The handgun ban, then, materially burdens the right to bear arms in self-defense. Such burden thresholds are common for other constitutional rights, such as the right to marry, the right to expressive association, the right to abortion (back when that right was recognized), the right to religious exemptions, the right to strong protection against even content-neutral speech restrictions, and more.

In Bruen, the Court also said that the Second Amendment inquiry must focus on (1) "whether modern and historical regulations impose a comparable [and comparably justified] burden on the right of armed self-defense," and on (2) "how and why the regulations burden a law-abiding citizen's right to armed self-defense." This too suggests that the magnitude of the burden matters.

But not just the magnitude of the burden matters, it appears—the reason for the burden also matters, which may end up reincorporating some sort of heightened scrutiny means-ends analysis into Second Amendment law, once the burden is found to be modest enough. Footnote nine, after all, stressed that the shall-issue laws burden the right for good reason: to support enforcement of constitutionally valid restrictions on gun ownership.

The Court had earlier concluded, based on its understanding of the Second Amendment's historical scope, that the right was limited to "law-abiding, responsible citizens." The "background check[s]" required by "these shall-issue regimes" support that limitation by making sure that the owners are indeed law-abiding and responsible in that sense. And the "firearms safety course[s]" promote the limitation by training licensees to be "responsible" in the sense of being able to use concealed weapons safely, should the need arise; indeed, such courses also often teach people how to be "law-abiding," for instance, by discussing the often complicated rules related to when lethal self-defense is permitted. These restrictions thus impose burdens that are both modest and justified by the scope of the right secured by the Second Amendment.

By way of comparison, fees that are higher than needed to administer the permitting system may be unconstitutional either (1) because they are "exorbitant" as an absolute matter or (2) because they are not "designed to ensure only that those bearing arms in the jurisdiction are, in fact, 'law-abiding, responsible citizens,"' but might instead be designed simply to raise money or deter gun ownership. Likewise, they would not be "comparably justified" to fees that are tailored just to the administration of the system.

Of course, people will disagree about which burdens should normatively count as substantial—just as they have disagreed about which burdens on abortion rights count as substantial, or about how ample the alternative channels left open by content-neutral time, place, or manner speech restrictions must be. Indeed, some courts have tried to minimize the burden imposed by very substantial restrictions: For instance, the Fifth Circuit upheld a ban on 18-to-20-year-olds acquiring guns from licensed dealers in part on the grounds that this was "an age qualification with temporary effect. Any 18-to-20-year-old subject to the ban will soon grow up and out of its reach." Yet whatever one might say of a waiting period of a few days, a waiting period of nearly three years, even if literally "temporary," is surely a serious burden.

It may also be hard to empirically determine just how burdensome a particular restriction might be. And of course restrictions that impose small burdens, when viewed individually, could end up amounting to a large burden. The Court's skepticism of even modest content-based speech restrictions may stem from this concern. But the Court nonetheless does consider the substantiality of a burden in many cases, by focusing, for instance, on whether a content-neutral restriction "leaves open ample alternative channels" for communication; the same might be feasible for gun controls, where courts can ask whether the restriction leaves open ample alternative means for effective armed self-defense. And more broadly, Bruen and its toleration of some regulations, such as shall-issue licensing requirements, suggest that some inquiry into the magnitude of a given burden is indeed part of the Second Amendment test.

Here are some more details on the Rhode Island regulatory scheme:

To obtain a handgun permit, the [Rhode Island Firearms] Act establishes "[t]wo separate and distinct licensing procedures." The first, set out in § 11-47-11, "is mandatory—an applicant who meets the criteria set forth in § 11-47-11 is entitled to a gun permit." Local officials issue these permits and are limited to issuing only concealed carry permits ("restricted permits").

The second procedure, detailed in § 11-47-18, "provides for the discretionary grant of a firearms license by the [AG] 'upon a proper showing of need.'" These discretionary permits authorize both open and concealed carry ("unrestricted permits"). Under Rhode Island law, permits of this nature are a privilege and there is no constitutionally protected liberty interest in obtaining one.

Neither § 11-47-18 nor any other section of the Act defines the term "proper showing of need," but the AG has issued policy guidance with a non-exclusive list of factors that he considers. But the AG retains "discretion to refuse a license even if a person makes 'a proper showing of need.'" Although this discretion is broad, it is not unlimited; the AG "must adhere to minimum procedural requirements when rejecting an application." "A rejected applicant is entitled to know the evidence upon which the [AG] based [his] decision and the rationale for the denial." The AG's decision is also subject to judicial review for legal error.

Plaintiffs in this case are seven residents and citizens of Rhode Island. Each possesses a restricted permit. And each previously possessed an additional unrestricted permit. But in 2021, the AG denied all their renewal applications for these unrestricted permits, finding that they did not need them because they already had restricted permits. Plaintiffs appealed their application denials and, following a hearing, the AG again denied their renewal applications….

The post Restricting Open Carry of Guns Constitutional if Concealed Carry Allowed appeared first on Reason.com.

[Eugene Volokh] Court Rejects Subpoena Request from Turkey Seeking Records on Gülen Movement Member, Allegedly for Turkish Financial Crime Prosecution

["[T]he sheer breadth of the discovery sought in Türkiye's Application, considered in light of the colorable allegations of political motivation presented in support of Turkyolu's motion, weighs heavily against the Application at this time."]

A short excerpt from Friday's long decision by Judge John Cronan (S.D.N.Y.) in In re Application of the Republic of Türkiye:

Cevdet Turkyolu, a member of the faith-based Gülen movement, is one of several targets of a Turkish money-laundering investigation and insider-trading prosecution. Pursuant to an application under 28 U.S.C. § 1782 that the Court approved late last year, the Republic of Türkiye served subpoenas on two American banks seeking financial records and other documents pertaining to Turkyolu and four others that Türkiye claims will advance those criminal matters. The banks later produced a number of records, which Türkiye then provided in support of another (currently pending) discovery application under Section 1782.

Turkyolu now moves to quash both subpoenas and to vacate the Court's prior Order granting Türkiye's application. According to Turkyolu, Türkiye's application does not represent a bona fide attempt to seek evidence relevant to the criminal matters involving him, but is instead part of a years-long campaign of harassment and retaliation against the Turkish government's political enemies and the Gülen movement in particular. For that reason, Turkyolu says, Türkiye's application cannot satisfy Section 1782's requirement that the discovery sought be "for use" in a foreign proceeding. And even setting that issue aside, Turkyolu maintains that Türkiye's application is unduly intrusive and made in bad faith, justifying denial of the application on discretionary grounds. Turkyolu also contends that Türkiye did not serve the subpoenas in compliance with Federal Rule of Civil Procedure 45, presenting an independent basis to quash.

For the following reasons, the Court agrees that Türkiye failed to comply with Rule 45 in serving the subpoenas and that the materials submitted by Türkiye in support of its application—a three-page declaration and a copy of a 2017 insider-trading indictment—do not adequately support its request for discovery in light of Turkyolu's colorable allegations of improper motive. The Court therefore grants Turkyolu's motion to quash the subpoenas, vacates its prior Order granting Türkiye's application, and directs the parties to submit supplemental briefing addressing the appropriate remedy regarding the documents that Türkiye has already obtained pursuant to the quashed subpoenas….

The court offers many arguments in support of its conclusion, but here's an excerpt as to just one:

[T]he sheer breadth of the discovery sought in Türkiye's Application, considered in light of the colorable allegations of political motivation presented in support of Turkyolu's motion, weighs heavily against the Application at this time.

Specifically, the Court agrees with Turkyolu that the categories of documents covered by the Subpoenas "are extremely broad and … are suggestive of a fishing expedition and, perhaps, a purpose beyond simply investigating potential money laundering in [Türkiye]." For instance, the Subpoenas seek "[a]ll documents relating to financial transactions made in U.S. dollars to, from, and through accounts held by [Turkyolu and the other Turkish defendants]" from December 18, 2002, to the present. That request includes "all bank statements and any other records showing transfer of money and any other financial instrument, including but not limited to checks, wire transfers, or any other method of transfer."

Yet the 2017 Indictment only alleges criminal conduct taking place during a few months in early 2014, and as discussed [above], the status of that prosecution is uncertain at best. Plus, Mr. Kaçmaz's declaration "provides what can only be described as the most minimal information" connecting Turkyolu's alleged money-laundering activity and the 2017 Indictment to the financial records sought by the Subpoenas. The Subpoenas also seek "[a]ll documents and communications relating to [Turkyolu and the other Turkish defendants], including all documents and communications relating to potential fraud, money laundering or suspicious activity related to them individually or collectively." But the Subpoenas do not define what they mean by "suspicious activity," a vague term that potentially covers a far broader swath of materials than those relevant to the insider-trading prosecution and money-laundering investigation identified in Mr. Kaçmaz's declaration.

The breadth of Türkiye's Application, the unclear status of the 2017 insider-trading prosecution, and the vague descriptions of the money-laundering investigation are particularly troubling in light of the political context of this case. Türkiye does not dispute that Turkyolu is a longtime member of the Gülen movement. Nor has it presented any factual challenge to Turkyolu's allegations concerning the Turkish government's efforts to retaliate, for political reasons, against members of the Gülen movement—which the Turkish government has branded the Fetullah Terrorist Organization, or "FETÖ" for short. Indeed, as one federal judge in the Southern District of Florida has found, Türkiye "has engaged in an open campaign of repression against individuals with perceived or actual ties to FETÖ," and "[t]he Turkish regime has frequently targeted individuals—including U.S. nationals—for prosecution on the basis of vindictive rumors and secret testimony." And as recently as July 2024, more than 140 members of Congress expressed concern in a letter addressed to President Joseph R. Biden regarding the Turkish government's "transnational repression campaign … against its critics abroad," specifically highlighting Türkiye's efforts to retaliate against individuals associated with the Gülen movement. In sum, the mismatch between the breadth of the discovery sought by Türkiye and the vagueness of the materials presented in support of the Application, considered in light of the attendant political circumstances, creates an unacceptable risk that the discovery in this matter is being sought for improper reasons.

Even so, this Court stops short of definitively ruling that Türkiye's Application does not "reflect[ ] a good faith effort to elicit evidence that has probative value in a pending Turkish criminal investigation" and prosecution. It should also go without saying that the mere fact that Turkyolu is a member of the Gülen movement does not mean that he is immune from Turkish criminal prosecution, or that Türkiye is categorically precluded from seeking the aid of U.S. federal courts under Section 1782 in holding him accountable under Turkish law. See In re Application of Republic of Turkey (S.D. Ohio 2023) (granting in part a Section 1782 application filed by Türkiye seeking discovery for use in a money-laundering investigation).

Instead, the Court merely reaffirms that it cannot abdicate its responsibility to ensure that Section 1782 is not wielded as a tool of political repression. And to that end, the need to prevent Section 1782 from being used to harass political opponents weighs strongly against approval of the Application as currently constituted….

The defendant is still Turkey to me, not Türkiye, just as I call certain other countries Germany, Russia, and Greece, rather than Deutschland, Rossiya, and Ellas (or Hellada or the Hellenic Republic). But I take it that the judge decided to use the name given by Turkey as a party.

The post Court Rejects Subpoena Request from Turkey Seeking Records on Gülen Movement Member, Allegedly for Turkish Financial Crime Prosecution appeared first on Reason.com.

[Eugene Volokh] No Foreign Employment Advantages Exception to Confidentiality of Adoption Records—Not Even for Opera Singers

From a 2017 case that I just came across, Petition to Unseal Record of Adoption of Robert (written by Surrogate Rita Mella):

Petitioner contends that, if, as he hopes, he can establish, by means of [his late father] Robert's pre-adoption birth certificate, that the birthplace of Robert's biological father was Italy, he and his two adult children would be able to obtain Italian citizenship and thus citizenship in the European Union, which would serve to advance their respective careers, in particular, that of his daughter, an opera singer.  {Petitioner states: "I am recognized for my expertise as an international employment lawyer" and "have need to travel and temporarily reside in Italy (and elsewhere in Europe) for business and professional reasons." … [P]etitioner's counsel averred: "The most direct beneficiary will be petitioner's daughter … who is pursuing a career as a professional opera singer. There are far more opportunities for opera singers, and substantially more opera houses, in Italy and other European Union countries, than in the United States."} …

Petitioner argues that "no person's right of privacy or expectation of confidentiality will be invaded if this Petition is granted." Petitioner's counsel argued at the hearing that Robert would seek the same relief if he were alive today. At issue here, however, is not only the violation of Robert's confidentiality but also that of Robert's biological parents.

The Department of Health and Mental Hygiene posits that, as custodian of Vital Records, it has a vested interest in maintaining the strong policy of the State of New York to afford confidentiality to all parties to an adoption. The Department argues that the primary ground for granting access to a sealed adoption record is medical necessity, and that prima facie evidence of "good cause" is a need to examine the medical records of an adoptee's biological parents in order "to address a serious physical or mental illness" but only after a physician licensed to practice medicine in the state of New York has certified such need. The Department further contends that professional advancement and financial gain fall far short of the "good cause" contemplated by the Legislature…. Having considered the arguments of the Department of Health and Mental Hygiene, the court … denies the petition for failure to establish good cause ….

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[Eugene Volokh] Another Reminder: Plaintiffs' Lawyers Ought to Warn Clients That Their Cases Will Be Publicly Available

From Judge Valerie Caproni (S.D.N.Y.) Tuesday in Hooks v. Bridgestreet Global Hospitality:

[O]n October 2, 2019, the parties informed the Court that they reached an agreement in principle, and this case was dismissed with prejudice …. [O]n July 18, 2025, Plaintiff moved to seal the public docket and associated filings in the case, as the "record contains sensitive personal information, including references to medical history and allegations of racial discrimination, which continue to cause reputational harm and professional hardship" ….

Plaintiff … argu[es] that the presumption of public access is outweighed by the following factors: the case was resolved without a finding of liability; the filings contain sensitive personal and medical information; the continued public availability of the record has caused harm to Plaintiff's employment prospects; there is no ongoing public interest in the contents of the file; and Plaintiff asked his former counsel to have the case sealed and relied on counsel's representations that the case would be closed ….

A brief excerpt from the plaintiff's declaration in support of the motion to seal the case file:

In 2018, I filed a civil rights action against my former employer …. Based on an arbitration clause in the onboarding paperwork, the Court compelled the matter to private arbitration. I had believed that the arbitration process would limit public visibility of the record, but later learned the docket remained accessible….

While the intent of the lawsuit was accountability, I did not anticipate that these documents would remain publicly available through court databases and search engines.

During arbitration and settlement discussions, I expressed concern to my legal counsel, The Harman Law Firm LLP, about the potential impact of public access to my case file. I verbally requested that steps be taken to seal or restrict access. Based on these discussions, I believed the matter had been resolved appropriately.

Back to the judge's opinion:

Plaintiff states that he relied on his former counsel's representation that the matter would be closed, and yet he attached as Exhibit A an email dated March 13, 2020, from an administrative assistant at the Harman Firm, LLP, that states that if the firm did not hear back from Plaintiff within 60 days, the firm would dispose of the case files consistent with its ethical obligations, but the email did not make any reference to having the Court seal the case files.

IT IS HEREBY ORDERED that the motion to seal the case is DENIED. Common law and the First Amendment protect the public's right of access to court documents. See Nixon v. Warner Commc'ns, Inc. (1978); Hartford Courant Co. v. Pellegrino (2d Cir. 2004). This right of access is not absolute, and "the decision as to access [to judicial records] is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." …

Plaintiff's motion to seal the entire case triggers First Amendment scrutiny. Among the documents Plaintiff moves to seal are the docket sheet, the complaint he filed, all other filings, and various court orders issued in this case. The docket sheet is the public record of the existence of this litigation. The remaining documents are "judicial document[s]," to which the public is presumed to have a right of access. See Bernstein v. Bernstein Litowitz Berger & Grossman LLP (2d Cir. 2016) (all pleadings, including a complaint, even in settled cases, "are judicial records subject to a presumption of public access"). Plaintiff made this motion nearly six years after the case had been terminated and cites only to vague claims that the record contains sensitive personal information, including references to medical history and allegations of racial discrimination which cause reputational harm and professional hardship. He claims that the equities favor sealing, and that the "trauma [he] experienced should never have become an open record subject to public misinterpretation."

The Complaint has two references to Plaintiff seeking "therapy" but has no other medical history information in it. Such cursory references, as well as vague allegations of reputational harm, do not overcome the presumption of access outlined in caselaw. The public holds a strong First Amendment interest in the judicial documents that Plaintiff moves to seal. The presumption of access therefore prevails unless the Court can make specific, rigorous findings that sealing the entire case is "necessary to preserve higher values" and "narrowly tailored" to protect this interest. Plaintiff has not made such a showing….

I've seen lots of cases like this, which make me think that many plaintiffs (especially in employment cases) don't really focus on how publicly accessible their filings will be, including to future employers. It seems to me that employment lawyers owe it to their clients to clearly warn them about such matters, before any public complaints are filed. Indeed, if there is an arbitration agreement, it may often make sense to go to arbitration at the outset (if the agreement so allows) and thus keep the matter private, rather than filing a complaint that remains public even if the case later goes to arbitration.

A bit of backstory from the Complaint, by the way, though this is just one of the items plaintiff complained about:

In November 2016, President Trump's election created severe tension in the office.

The Reservationist, … who is a white woman, wrote, "Congratulations President Trump!" on the board in the office. Mr. Hooks explained, "That's probably not the best idea in an office full of brown people," to which [the Reservationist] responded, "You had your time. It's our time now." At this point, … the New York Reservations Team Manager … began defending [the Reservationist], upsetting Mr. Hooks and the other minority employees in the office.

Mr. Hooks complained to about this incident and [a superior] responded via email a week later, saying only, "no talking about politics" in the office. Mr. Hooks responded to [that] email, copying two other Managers, … saying that BridgeStreet needed to revisit diversity training in the office to improve the BridgeStreet environment for their non-white employees. Yet, once again, Mr. Hooks received no response to his email.

The post Another Reminder: Plaintiffs' Lawyers Ought to Warn Clients That Their Cases Will Be Publicly Available appeared first on Reason.com.

[Eugene Volokh] TRO Against Alleged Defamation, and Also Banning "Harassing Conduct"

[Plaintiff alleges Defendant engaged in "a coordinated online campaign making false statements," such as "accusing Plaintiff of design/invention theft, racism, ... and encouraging the public to report Plaintiff's online shopping platforms on sites like Etsy, Shopify, and TikTok as fraudulent and/or ... [as] selling counterfeit goods.'"]

From Owen v. Askew, decided July 24 by Judge Ann Aiken (D. Ore.); I'm skeptical about this, because the relief is before any trial on the merits (and thus isn't based on any final determination on the merits that certain allegations are false), because it's an ex parte TRO entered just six days after the suit was filed and before defendant was even served, and because it extends beyond even alleged defamation to "harassing conduct." (For more, see my Anti-Libel Injunctions and Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases.) But whatever I think, the judge thought different, and the decision struck me as worth noting. Here's the judge's summary of plaintiff's allegations:

Plaintiff in this case is the owner of a business, Elegance & Geekery LLC, which sells hair accessories. Defendant Breana Askew is a resident of Florida who does business as Breromi. Defendant Kiandra Demone Boyce is a resident of Georgia.

Beginning on July 14, 2025, Askew "began a coordinated online campaign making false statements," including "publicly accusing Plaintiff of design/invention theft, racism, selling counterfeit versions of goods Defendant Askew claimed she owned patents and trademarks covering, and encouraging the public to report Plaintiff's online shopping platforms on sites like Etsy, Shopify, and TikTok as fraudulent and/or engaged in illegal activity including selling counterfeit goods."

Askew's campaign is based on her claim that Plaintiff is selling a hair accessory which Askew claims infringes on her patent.  Plaintiff alleges that "Askew's only claim to any intellectual property is her filing of an application (not yet reviewed) for a trademark over the phrase 'Magnetic Hair Clip' and a filed patent application (not yet published)" and that the "content of that application has never been provided, so no one knows what she is even claiming she has rights to."

Plaintiff alleges that between July 14 and July 17, 2025, Defendants "engaged in an online smear campaign, attempting to leverage public hate and harassment as a means of forcing Plaintiff to flee the market." This campaign is "ongoing" and "will likely continue without court interference." Among other things, Defendants have accused Plaintiff of racism, theft of intellectual property relating to the hair clip, and the sale of counterfeit goods. Boyce has attempted to coordinate a large number of third-party complaints to Plaintiff's vendors in an effort to have Plaintiff's store removed from online platforms.

Defendants' campaign against Plaintiff has resulted in public confusion, as well as threats and abuse directed at Plaintiff by third parties who read Defendants' statements concerning Plaintiff.

This campaign has damaged Plaintiff's business reputation and her personal reputation. Plaintiff alleges that she had suffered lost profits, lost sales, and lost customer goodwill.

And here's the legal analysis:

Plaintiff bring claims for defamation (Claim 1); trade defamation (Claim 2); tortious interference with business relations and prospective economic advantage (Claim 3); civil conspiracy to defame and interfere with business (Claim 4); intentional infliction of emotional distress (Claim 5); false advertising and unfair competition pursuant to the Lanham Act, 15 U.S.C. § 1125(a) (Claim 6); unfair and deceptive trade practices under Oregon law as to Askew (Claim 7); and negligence (Claim 8). Plaintiff seeks injunctive and declaratory relief.

With respect to the TRO motion, Plaintiff focuses on her claims for defamation and seeks an injunction restraining Askew and Boyce from making further defamatory statements concerning Plaintiff or her business; engaging in harassing or misleading conduct or encouraging others to do so; and directing Askew and Boyce to remove the defamatory posts they have already made concerning Plaintiff or her business….

As noted, Plaintiff's TRO motion is focused on her claims for defamation…. Here, Plaintiff has alleged that Defendants have publicly and falsely accused her of theft and the sale of counterfeit goods and that they have incited third parties to make false reports against her business. Plaintiff has supported these allegations with exhibits which appear to show Defendants making public statements accusing Plaintiff, among other things, of stealing intellectual property. The Court concludes that Plaintiff has demonstrated a likelihood of success on the merits and that this factor weighs in favor of injunctive relief…. Although the issuance of an injunction against speech based on falsity implicates serious First Amendment concerns, "courts routinely grant TROs restricting speech that is not merely false, but defamatory." …

Defendant Breana Askew, individually and doing business as Breromi, and Defendant Kiandria Demone Boyce are ENJOINED from:

(1) Publicly accusing Plaintiff Kursten Owen, individually and doing business as Elegance & Geekery LLC, of theft, counterfeiting, or other unlawful business practices;

(2) Engaging in harassing conduct directed at Plaintiff, such as filing complaints with Plaintiff's business partners, or the encouraging of third parties to do so;

This injunction is effective from the date and time of this Order and shall continue in effect for fourteen (14) days….

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[Luke Goodrich] Religious Hiring Beyond the Ministerial Exception

[An important church–state question likely headed to the Supreme Court.]

When can a religious group, like a church or school, lawfully fire an employee for violating its religious teachings? Under a constitutional rule called the "ministerial exception," religious groups have broad leeway to hire and fire "ministers"—broadly defined to include employees who perform important religious functions. But what about any employee like a secretary or janitor, who may not perform important religious functions? What legal protections do religious groups have when they hire and fire non-ministers?

This is the question presented in a spate of new cases now hitting appellate courts nationwide and likely, eventually, landing in the Supreme Court. It is also the question addressed in my forthcoming article in the Notre Dame Law Review, Religious Hiring Beyond the Ministerial Exception.

The article provides a comprehensive analysis of six potential legal protections for the religious hiring of non-ministers. Three are statutory: (1) Title VII's religious exemption, (2) Title VII's bona fide occupational qualification exemption; and (3) the Religious Freedom Restoration Act. Three are constitutional: (4) the church autonomy doctrine, (5) the freedom of expressive association, and (6) the Free Exercise Clause. For each protection, the article examines the key caselaw, breaks down the arguments for and against applying the protection, and identifies key pressure points and unanswered questions. The result is, I hope, a much-needed roadmap of an important issue of pressing interest to scholars, jurists, and practitioners alike.

Thanks to Eugene for inviting me to guest-blog about this issue. This first post will define the problem I'm addressing and explain why it has become such a pressing issue in federal court. Future posts will unpack the potential legal solutions and explain what courts are getting right and what they're getting wrong.

The ministerial exception

To understand religious hiring for non-ministers, it's important first to understand the key legal doctrine governing the hiring of ministers: the ministerial exception.

The ministerial exception is a First Amendment doctrine that protects religious groups from government interference in the selection of their "ministers"—broadly defined as employees who perform "vital religious duties." In Our Lady of Guadalupe School v. Morrissey-Berru, for example, a Catholic school dismissed a sixth-grade teacher for poor performance, and the teacher sued, alleging the real reason for her dismissal was age discrimination. The Supreme Court held that her lawsuit was barred by the ministerial exception, because she performed the "vital religious duties" of teaching religion classes, praying with students, and guiding their growth in the Catholic faith.

When the ministerial exception applies, it acts as an affirmative defense that bars any claim challenging a religious organization's selection, supervision, or control of its ministers. This includes claims of employment discrimination based on race, sex, national origin, age, or disability. It also includes tort or contract claims that challenge ministerial selection or control. But it applies only to ministers—employees who carry out important religious duties.

What about non-ministers?

But what about employees, like many secretaries or janitors, who don't perform important religious duties? What protections do religious groups have for choosing those employees?

Few cases have addressed this question. That's because, in most non-minister cases, there is no significant conflict between employment laws and religious practices. In most cases, non-ministers are let go for non-religious reasons—such as poor performance, personality fit, or budgetary needs. Such cases can be handled like any other employment dispute without entangling courts in religious matters.

A few cases have involved non-ministers let go for religious reasons—such as engaging in sexual conduct outside marriage or getting divorced and remarried contrary to church teaching. In those cases, the question becomes whether the religious reason is the real reason for the employment action or is instead a pretext for illegal discrimination (like age or sex discrimination). Some courts have allowed these pretext claims to go forward and treated them like any other employment dispute; others have held that these pretext claims impermissibly entangle courts in religious questions. But such cases have not been common.

Bostock changes the calculus

The Supreme Court's 2020 decision in Bostock v. Clayton County, however, has changed the calculus. Bostock held that the federal ban on employment discrimination based on "sex" also prohibits discrimination based on sexual orientation or transgender status. This creates a direct conflict between federal law and the religious hiring practices of thousands of religious organizations—many of which ask all their employees, including non-ministers, to abide by their traditional beliefs about sex and marriage.

For example, suppose a Catholic school dismisses a secretary because she entered a same-sex marriage in violation of Catholic teaching. Before Bostock, the secretary had no federal claim for employment discrimination. After Bostock, she does.

Note, too, how her new claim differs from a pretext case. In a pretext case, the secretary says, "You fired me because of my age (or other protected characteristic)," and the school denies it, saying, "No, we didn't. We fired you because you violated church teaching." The dispute is over the real reason for the firing.

In a Bostock case, by contrast, the secretary says, "You fired me because I entered a same-sex marriage," and the school says, "Yes, we did, because that violates church teaching." There is no dispute over the reason for the firing. The dispute is over whether the school can legally act on its religious beliefs.

This significantly raises the stakes of the church–state conflict. In a pretext case, the government effectively tells a religious group, "You're free to act on your religious beliefs if that is the real motivation for your action." In a Bostock case, the government tells a religious group, "We don't care if you're truly acting on your religious beliefs; acting on those beliefs is discriminatory and illegal."

Thus, absent a viable religious-freedom defense, Bostock makes it illegal for religious groups to make employment decisions based on certain core beliefs about sexuality and marriage. This, in turn, undermines the ability to form religious communities based on those shared religious beliefs. And this poses a serious challenge to religious freedom.

"Future cases"

Bostock itself acknowledged concerns that its holding "may require some employers to violate their religious convictions." But the Court said the relevant "doctrines protecting religious liberty" would have to be addressed in "future cases."

Those future cases have now arrived. In the last five years, there have been at least eighteen reported cases involving religious groups asking employees to adhere to their beliefs on sexual orientation or gender identity. At least thirteen of those cases have now hit appellate courts or will soon.

These include, for example, a high school that dismissed a substitute drama teacher who entered a same-sex marriage; a university that dismissed an IT apprentice who had a gender transition; a high school that dismissed a librarian who had a gender transition; and a homeless shelter that asks all its employees, from computer technicians to janitors, to agree with its religious views on marriage.

Lower courts have already resolved those cases inconsistently. (In fact, the four examples just listed were resolved in four different ways!) A circuit split seems inevitable.

Can religious groups require non-ministers to adhere to their beliefs about sexuality and marriage? Or will federal employment laws require religious groups to hire employees who reject their core beliefs?

My next few posts will preview the key statutory and constitutional defenses at issue in such cases—and likely to garner the Supreme Court's attention soon. Stay tuned.

The post Religious Hiring Beyond the Ministerial Exception appeared first on Reason.com.

[Eugene Volokh] Luke Goodrich (Becket Fund) Guest-Blogging This Week About "Religious Hiring Beyond the Ministerial Exception"

I'm delighted to report that Luke Goodrich of the Becket Fund—one of the most prominent, successful, and ecumenical religious liberty litigation groups in the country—will be guest-blogging this week about his forthcoming Notre Dame Law Review article, Religious Hiring Beyond the Ministerial Exception:

Can a religious school fire its secretary for entering a same-sex marriage? Under the First Amendment's "ministerial exception," religious employers have a constitutional right to select their "ministers"—broadly defined to include individuals who perform important religious functions. But what about an employee, like a secretary, who is not a minister? Do religious groups have any legal protections for hiring non-ministers?

This Article provides a comprehensive taxonomy of legal protections for the religious hiring of non-ministers. It analyzes six protections. Three are statutory: (1) Title VII's religious exemption, (2) Title VII's bona fide occupational qualification exception; and (3) the Religious Freedom Restoration Act. Three are constitutional: (4) the church autonomy doctrine, (5) the freedom of expressive association, and (6) the Free Exercise Clause. For each protection, the Article examines the leading caselaw (where it exists), analyzes the arguments for and against the protection, and identifies key unanswered questions. The result is a much-needed roadmap of an emerging legal issue of great importance to scholars, jurists, and practitioners alike.

After providing this roadmap, the Article addresses the deeper problem of determining which legal doctrines offer the best "fit" for protecting the religious hiring of non-ministers. As the Article explains, Title VII's religious exemption offers strong statutory protection for the religious hiring of non-ministers. But recent developments in state law are taking that statutory protection off the table in some cases, forcing courts to grapple with thorny constitutional questions that neither courts nor commentators have yet explored.

I'm much looking forward to his posts.

The post Luke Goodrich (Becket Fund) Guest-Blogging This Week About "Religious Hiring Beyond the Ministerial Exception" appeared first on Reason.com.