SCOTUS First Amendment Duo: Of Crosses and Cable Access

Rounding out its current term, the U.S. Supreme Court recently issued two First Amendment rulings affecting the government’s intersection with private interests such as religion and freedom of expression. These rulings reflect the Court’s tensions on First Amendment issues, with a demonstrated willingness to abandon the long-questioned Lemon test for Establishment Clause religion cases as well as divergent views on when a private party becomes a “state actor” and therefore subject to First Amendment constraints. We address each decision in turn.

Clergy as Mandated Reporters, Without Exception?

Amid continuing revelations of child sexual abuse committed by clergy members, some states are rejecting such exception and requiring clergy to report information received through personal confessions – or possibly face criminal fines and jail. With pertaining bills passing in the Illinois House of Representatives and California Senate, this trend reflects sharp tensions between important interests: government deference to religious liberty freedoms and government interests in protecting vulnerable persons from harm. 

“Play Between the Joints” and Tax Theory: Reflections on Seventh Circuit’s Clergy Housing Allowance Ruling

On March 15, 2019, the Seventh Circuit issued its Gaylor v. Mnuchin ruling, upholding the clergy housing allowance’s constitutionality.  This decision astutely recognizes that the fundamental questions in this case fall in a jurisprudentially gray area, or within the “play in the joints” between the First Amendment’s Free Exercise and Establishment clauses.  Between these two foundational pillars of our liberal democracy, the Court’s constitutional interpretation rightly respects the independence of institutions for a free society, particularly as applied to the clergy housing allowance.  Such deference further implicates the interplay between tax subsidy theory and religion. 

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