First Amendment Law Prof Blog

Texas Court Voids Strip Club Customer Fee as First Amendment Violation

This AP report appears in today's New York Times:

Texas: Fee on Strip Club Patrons Rejected by Judge
A state district judge has ruled that Texas may not collect a $5-per-customer strip club fee that went into effect in January. The judge, Scott Jenkins, wrote in an opinion that the fee, while furthering laudable goals, violated First Amendment free speech rights. The Legislature created the fee last year to pay for sexual assault prevention programs and health insurance for low-income Texans.

See prior blog post for more information on what some observers wryly referred to as a Texas "pole tax".

JFB 
   

Indiana Booksellers Feel Chilling Effect in New Registration Law

As the title of an Indianapolis Star editorial declared yesterday, "Bad Law for a Good Cause Invites Volumes of Worry". A new Indiana statute, set to go into effect on July 1, will require all sellers of sexually explicit material to register with the state Secretary of State, who would then forward the collected information to local law enforcement officials. The local officials would then monitor the identified businesses for violations of relevant area ordinances.  The statute defines "sexually explicit material" as follows:

Sec. 2. (a) As used in this chapter, "sexually explicit materials" means a product or service:
        (1) that is harmful to minors (as described in IC 35-49-2-2), even if the product or service is not intended to be used by or offered to a minor; or
        (2) that is designed for use in, marketed primarily for, or provides for:
            (A) the stimulation of the human genital organs; or
            (B) masochism or a masochistic experience, sadism or a sadistic experience, sexual bondage, or sexual domination.
    (b) The term does not include:
        (1) birth control or contraceptive devices; or
        (2) services, programs, products, or materials provided by a:
            (A) communications service provider; (B) physician; or
     (C) public or nonpublic school.

As the Star's editorial warns, booksellers will now face needless questions about their obligation to register as they examine a wide variety of adult oriented literature that could be seen as "harmful to minors" despite having significant artistic or literary value. In addition, the specter of surveillance of registrants by local law enforcement officials appears to create the classic self-censorship chilling effect scenario.  In an earlier Indianapolis Star report, the president of the American Booksellers Foundation for Free Expression, Chris Finan, states that the foundation plans to ask the Media Coalition to challenge the statute's constitutionality. The author of the new statute, state Sen. Brent Steele, has dismissed the booksellers' concerns and says that the law will only apply to new businesses and would not affect those that sold sexually explicit material before the effective date of the statute unless those pre-existing businesses relocated.            

JFB            

Arizona Anti-Solicitation Law, Aimed at Immigrant Day Laborers, Challenged as Violating First Amendment

This week the ACLU Immigrants' Rights Project and MALDEF announced that they had filed suit against the town of Cave Creek, Arizona. Their complaint asserts that the anti-solicitation ordinance enacted in late 2007 is a content-based restriction of speech taking place in traditional public fora, such as town streets and sidewalks. The ordinance states: "No person  shall stand on ar adjacent to a street or highway and solicit or attempt to solicit, employment, business or contributions from the occupant of any vehicle." A violator faces a fine for a civil code violation for a first offense but could face imprisonment for up to six months if a third violation in occurs in a two year period. The complaint notes that courts in the Ninth Circuit have consistently invalidated anti-solication laws, even those aimed at and connected to the potential obstruction of traffic, on the grounds that the restrictions were not narrowly tailored to enhance traffic safety.      

Although the motivation behind the restrictions appears to be an effort to respond to a perceived problem with illegal immigrants in the community, the ACLU and MALDEF further assert that the ordinance is vaguely worded and overbroad, potentially applying to a Salvation Army bellringer or a group of cheerleaders advertising a car wash fundraiser at a local gas station.

JFB      

Ten Commandments Monument Does Not Violate Establishment Clause

How Appealing provides links to a Reuters report on the Ninth Circuit's recent decision in Card v. City of Everett. Basing its analysis on Van Orden v. Perry and the specific approach presented the Breyer concurrence there, the Ninth Circuit found that a six foot granite monument inscribed with the text of the Ten Commandments and installed on the grounds of the city hall in Everett, Washington fifty years ago did not violate the Establishment Clause. The opinion sees a connection between the monument and the evocation of a source of civic morality with this connection existing both in the purpose of the monument and the perception of the monument's purpose by viewers.  In addition, the opinion notes that the presentation of the monument does not appear to be aimed at being "conducive to genuflection", potentially displacing a primary civic association with a sacred, reverential one, and adds that the historic absence of complaints serves to corrobate the constitutional conclusion.

JFB                     

Cert. Petition in Summum Monument Case To Be Reviewed in Conference This Week

In another chapter in the saga of the Constitution and the Commandments, the Pleasant Grove City, Utah has sought Supreme Court review of the Tenth Circuit's decision ordering the grant of a preliminary injunction to allow members of the Summum religious sect to erect a monument containing "the Seven Aphorisms of Summum" in a city park that already housed a Ten Commandments monument donated by the Fraternal Order of Eagles. (The Eagles had donated the monument at issue in Van Orden v. Perry in which a divided Court found such a monument in the context examined did not represent an Establishment Clause violation.) Pleasant Grove City had contended that park monuments represent government speech and that it therefore could reject a monument from a potential donor. The Summum members countered that the donated monuments should be considered private speech in a traditional public forum and that the rejection of their donation would represent viewpoint discrimination.   A more detailed summary of the issues addressed in proceedings below is available from Scotusblog.  The possibility of setting off a turf battle for equal access to the limited space available in public spaces for such completing engraved marble slabs would be a comically intriguing consequence of pursuit of the forum characterization. Alternatively, accepting the proposition that a solitary display of a donated Ten Commandments monument is constitutionally protected government speech seems impermissible under what remains of Establishment Clause limitations on government conduct in this context. 

JFB

More Muslim Families Choosing to Homeschool

According to an article in today's New York Times, increasing numbers of Muslim families are choosing to homeschool their children, particularly their daughters, due to concerns about how the public school environment might conflict with or undermine their children's religious and cultural commitments. Parents also cite apprehensions about encounters with anti-Muslim prejudice at public schools.  Examining one northern California district, the Times found  that approximately forty percent of Pakistani-American and other South Asian-American girls of high school age in the district were being home-schooled. 

Neil MacFarquhar, the Times reporter on the story, noted that many Muslim families were reluctant to talk about their decision to homeschool given what they perceive as a sense among the local community that such families are likely to be religious extremists. This fear can be attributed in part to the fact that Adam Gadahn, known as an American-born spokesperson for Al Qaeda in some of the terrorist group's videos, was home-schooled in California. The article also noted that home-schooling is favored more by American born converts to Islam than by families of recent immigrants. The decision to withdraw girls from school as part of an effort to "preserve family honor" and to enforce traditional gender roles has also generated divisions within the Muslim community with some voices suggesting that this objective is harmful to the girls involved, preventing them from assuming a role in the larger society and thwarting their personal opportunities for development. In the school district serving Lodi, California, homeschooled students are supervised by staff from a local public school and receive a weekly tutorial from the school for one hour each week. 

As Californians contemplate implications of the recent state appellate court ruling finding that  parents without teaching credentials cannot legally homeschool their children,(see prior post), this report adds another facet to the ensuing discussion of the legitimacy and constitutionality of efforts to regulate homeschooling, a Yoder question for the twenty-first century.

JFB                     

Religious Expression in the Military To Be Topic of Debate at Air Force Academy

Today's Blog from the Capital features an interesting post (with links) re: ongoing controversies about religious expression in the military:

Yesterday's Aspen Times ran a story on Mikey Weinstein and his legal challenge to the military for various forms of alleged religious discrimination. Head of the Military Religious Freedom Foundation, Weinstein is slated to debate issues of church-state separation and the military next month at the Air Force Academy in Colorado Springs. But the part of the article that caught my attention comes at the end:

The MRFF’s campaign has made national news, both in print and broadcast media. It also is featured in a documentary film set for release next month, entitled “Constantine’s Sword,” based on a book of the same title by former Catholic priest James Carroll. And the foundation’s work will be the subject of major news stories in The New York Times and a nationally distributed magazine that Weinstein declined to identify.

If a film release and national media coverage are indeed scheduled for April, we can at least hope for a substantive discussion of the issues raised on both sides of this contentious and important debate. 

JFB

Heller Argument Includes Chief Justice's Comment on Evolution of First Amendment Doctrine

During last week's argument in the D.C. gun control case, District of Columbia v. Heller, Chief Justice Roberts offered this disparaging assessment of the evolution of First Amendment doctrine, proffered as a possible model if the Court accepts that an individual Second Amendment right exists and goes on to try and formulate the standard of review to be applied to regulation of such a right:

CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?
I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

The comment appears on page 44 of the official argument transcript. 

JFB

         

Wariness of Drawing IRS Scrutiny Cited in Avoiding Homilies Addressing Obama/Wright Controversy

Yesterday's New York Times included a story on how pastors around the country planned to addressing the recent controversy over remarks made from the pulpit by Senator Obama's former pastor, Rev. Jeremiah Wright. After noting how the themes of a history of racial division and possibility of personal transformation and national redemption could be seen as natural components of Easter Sunday homilies, the Times report also cited some pastors' apprehensions  about how to frame such a discussion, apprehensions that included what they perceived as possible legal implications. The article states:

Many ministers said they would preach without explicitly mentioning Mr. Obama because they wanted to avoid alienating politically diverse congregations. They are also aware that some churches accused of making political endorsements have seen their tax-exempt status investigated by the Internal Revenue Service.

JFB      

Cert. Grant in Fleeting Expletive Case Stirs Media Anxiety

Today's New York Times includes an editorial expressing concern over the Supreme Court's decision last week to grant the FCC's petition for certiorari in the agency's appeal of its loss before the Second Circuit Court of Appeals in a challenge of the imposition of fines for brief outbursts of unscripted profanity during broadcasts on Fox. (See prior post re: grant.)  The editorial notes that the agency's policy change with regard to the punishment of broadcast indecency has had a significant chilling effect, leading broadcasters, especially public television stations without substantial financial resources to alter or cancel programming due to uncertainty over the application of the FCC's newly stringent policy.  The Second Circuit's decision invalidated the policy on administrative law grounds but indicated that the agency would find it hard to craft a policy that did not infringe on the First Amendment's protection of broadcasters. Noting that a denial of cert would have left the Second Circuit ruling in place, the Times editorial expresses anxiety about whether the Supreme Court intends to reverse the widely applauded appellate ruling.

JFB   

Nussbaum's Liberty of Conscience Reviewed

In today's New York Times Book Review, Emily Bazelon of Slate praises Martha Nussbaum's new book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality. Bazelon offers this summary of the focal point of Nussbaum's exploration of the place of religion in our constitutional democracy:

As Nussbaum unpacks the court’s interpretation of the Constitution’s free exercise and establishment clauses, her premise is that “equality is the glue that holds the two clauses together.”A longtime enemy of elitism in a variety of guises, she fiercely resists the power of a majority religion, aided and abetted by the state, to create an in-group while subordinating out-groups. Nussbaum anchors the countervailing equality tradition in the writings of Roger Williams and James Madison. Williams, who had extensive friendly dealings with the Narragansett Indians, wrote into the charter for the Rhode Island colony a right to freedom of conscience that shocked the British. He coined the phrase “soule rape” for the limiting of religious expression that does not violate civil law or harm others.

Nussbaum draws a straight line from Williams’s fusion of respect and fair play for religious groups to John Rawls’s vision of people choosing the basis of their common governance without knowing where they will be situated in the society that results. Williams and Rawls also agree that the state has a moral foundation that is religious for some people and nonreligious for others. Nussbaum finds this construct of “overlapping consensus” to be “a much more helpful idea to think with than the bare idea of ‘separation’” between church and state. She lauds Madison for seeing tax support for religion as an inevitable source of hierarchy and favoritism. But she does not read the establishment clause as erecting a wall that discounts the contributions of religion; this she sees as another “type of unfairness.”

After considering Nussbaum's evaluations of the Supreme Court's jurisprudence in this ever contentious area, Bazelon notes, "Nussbaum’s contribution is to show vividly how the equality tradition leads the court, and the rest of us, to ask the right questions."

JFB    

             

New First Amendment Scholarship

The following are newly available papers touching on First Amendment issues:

1) Stephen A. Siegel, (DePaul University - College of Law ), Injunctions for Defamation, Juries, and the Clarifying Light of 1868, 56 Buffalo Law Review --- (Forthcoming 2008). Its abstract states:

This article raises two issues of contemporary constitutional law. The first is a question of free speech: the propriety of the judiciary's current retreat from the traditional rule that equity cannot enjoin defamatory speech, which until now has been one of the unwavering precepts of the American law of remedies. The second is a question of constitutional jurisprudence: when determining the rights that citizens have against state government, should jurists who consider themselves originalists seek the meaning of the Bill of Rights in 1789, when the Bill was first adopted, or in 1868, when the Fourteenth Amendment made it applicable to the states?

As a contribution to the judiciary's reassessment of the traditional no injunction for defamation rule, this Article revises our understanding of rule's history and discusses the implications of that revision for the current debate on the no injunction rule's continued propriety. The historiography of the rule traces back to Roscoe Pound's 1916 article Equitable Relief Against Defamation and Injuries to Personality. In Pound's view, the rule was not settled at the nation's founding. I will argue that it was. Also in Pound's view, the rule was founded on such anachronistic concerns as the limitation of equity's jurisdiction to the protection of property rights. I will argue that it was founded in on considerations that still should influence us: distrust of judges and respect for the role of juries in free speech controversies.

In light of this argument, the Article suggests that if it is proper to depart from the traditional no injunction rule, the Supreme Court should find that the First Amendment imposes two jury-centered limitations on the departure: 1) no injunction may issue without a jury determination that the speech was defamatory; and 2) no injunction be enforced without a jury determination that the injunction was violated by speech that continues to be defamatory. By insisting on the inclusion of a jury in both the liability and enforcement proceedings, the insight of the constitution makers of the importance of a popular check on government regulation of speech may be retained.

As a contribution to the practice of originalism, this Article establishes a historical point with which Pound had no concern: the evidence supporting the claim that the no injunction for defamation rule was an established aspect free speech is far more clear and abundant if we consider the Reconstruction era rather than the nation's Founding. This point illustrates the importance, when discussing the limitations imposed by the Fourteenth Amendment on the states, of shifting the focus from the meaning of the Bill of Rights in 1791 to its meaning in 1868.

In this way, the paper contributes to the substantive debate on the future of the no injunction for defamation rule while it illustrates the importance of focusing on the evolution of Bill of Rights norms between 1789 and 1868 when interpreting the restrictions the Fourteenth Amendment imposes on the states.

2) Neil M. Richards,( Washington University School of Law ) Intellectual Privacy , 87 Texas Law Review ----( December 2008). Its abstract states:

This paper is about intellectual privacy - the protection of records of our intellectual activities - and how legal protection of these records is essential to the First Amendment values of free thought and expression. We often think of privacy rules being in tension with the First Amendment, but protection of intellectual privacy is different. Intellectual privacy is vital to a robust culture of free expression, as it safeguards the integrity of our intellectual activities by shielding them from the unwanted gaze or interference of others. If we want to have something interesting to say in public, we need to pay attention to the freedom to develop new ideas in private. Free speech thus depends upon a meaningful level of intellectual privacy, one that is threatened by the widespread distribution of electronic records of our intellectual activities.

My argument proceeds in three steps. First, I locate intellectual privacy within First Amendment theory and show their consistency despite the fact that traditional metaphors for why we protect speech direct our attention to other problems. Second, I offer a normative theory of intellectual privacy that begins with the freedom of thought and radiates outwards to justify protection for spatial privacy, the right to read, and the confidentiality of communications. Third, I examine four recent disputes about intellectual records and show how a greater appreciation for intellectual privacy illuminates the latent First Amendment issues in these disputes and suggests different solutions to them that better respect our traditions of cognitive and intellectual freedom.

3) Raphael Cohen-Almagor (University of Hull ), Hate in the Classroom: Free Expression, Holocaust Denial, and Liberal Education , 114 American Journal of Education 215-241 ( February 2008).  Its abstract states:

This article is concerned with a specific type of hate speech: Holocaust denial. It is concerned with the expression of this idea by educators. Should we allow Holocaust deniers to teach in schools? This article attempts to answer this question through a close look at the Canadian experience. First, I will establish that Holocaust denial is a form of hate speech. Next, I will lay down the main premises of the argument and make some constructive distinctions that will guide our treatment of teachers who are Holocaust deniers. Finally, I will probe three cases -James Keegstra, Malcolm Ross, and Paul Fromm -and argue that hatemongers cannot assume the role of educators.

4) Christina E. Wells ( University of Missouri School of Law), Privacy and Funeral Protests. Its abstract states:

This article examines the free speech implications of funeral protest statutes. Enacted in response to protests by the Westboro Baptist Church, such statutes restrict a broad array of expressive activity, including peaceful protests. This article focuses on the states' interest underlying such statutes - protecting mourners' right to be free of unwanted intrusions while at funeral services.

While few would argue against protecting funeral services from intrusive protests, these statutes go far beyond that notion. A careful examination reveals that the statutes are designed to protect mourners from offensive rather than intrusive protests. As such, they do not conceive of privacy as protection from intrusion. Rather they conceive of privacy as protecting human dignity from breaches of civility. American law does not traditionally recognize this conception of privacy. How then do such statutes come to rely on it?

To some extent the fault lies with the Supreme Court's free speech jurisprudence which has been remarkably unclear regarding the nature of the privacy interest it weighs against free speech rights. Although a careful read of the Court's cases shows that it rejects an interpretation of privacy as protecting against breaches of civility, its jurisprudence sends mixed signals. Lower courts hearing challenges to funeral protest statutes have misread the Court's jurisprudence and recognized a privacy right to be free from offensive messages while attending funerals. If allowed to stand, these decisions will work a dramatic change in the Court's doctrine. The article suggests ways that the Supreme Court must clarify its doctrine regarding privacy interests in order to avoid potential future confusion.

5) Timo Boppart, et al (University of Zurich Institute for Empirical Research in Economics), Qualifying Religion: The Role of Plural Identities for Educational Production. Its abstract states:

This paper examines the role of religious denomination for human capital formation. We employ a unique data set which covers, inter alia, information on numerous measures of school inputs in 169 Swiss districts for the years 1871/72, 1881/82 and 1894/95, marks from pedagogical examinations of conscripts (1875-1903), and results from political referenda to capture conservative or progressive values in addition to the cultural characteristics language and religion. Catholic districts show on average significantly lower educational performance than Protestant districts. However, accounting for other sociocultural characteristics qualifies the role of religion for educational production. The evidence suggests that Catholicism is harmful only in a conservative milieu. We also exploit information on absenteeism of pupils from school to separate provision of schooling from use of schooling.

6) Russell Powell (Seattle University School of Law), Theology in Public Reason and Legal Discourse: A Case for the Preferential Option for the Poor. Its abstract states:

There is a strange disconnect between the formal understanding of the separation of religion from government in the United States and the almost ubiquitous use of religious language in political discourse, not to mention the web of complicated religious motivations that sit on or just below the surface of policy debates. This paper presents an argument for the relevance of the principle of the "preferential option for the poor" from Catholic social thought in public reason and legal discourse in order to explore the possible advantages of making the veil between religion and the secular state more permeable. As a case study, it proposes dialogue between Catholicism and complementary secular thought, including standpoint theory, outsider methodology, and law and economics to explore possibilities for more effectively ensuring justice for the poor and marginalized. (An earlier version of this article was presented at Law, Culture and the Humanities at Georgetown Law Center in 2007.)

7) Julie Marie Baworowsky, Note - From Public Square to Market Square: Theoretical Foundations of First and Fourteenth Amendment Protection of Corporate Religious Speech, 83 Notre Dame Law Review ---- (2008). Its abstract states:

Should corporate religious expression receive protection under the Fourteenth Amendment's Due Process Clause and under the First Amendment's Speech Clause?

Case law or legal literature has never examined this issue, despite government's increasing burdens on corporate religious speech. Constitutional free speech doctrines therefore present an innovative and potent tool for civil rights attorneys and corporate counsel. Moreover, increasing corporate social responsibility through religion depends upon the right to free religious expression.

This Note examines the theoretical foundations of corporate religious speech rights through the lens of traditional corporate and associational theory. It rejects two corporate law theories denying corporate religious speech rights (artificial entity and contractarian) as outmoded conceptions no longer applicable to modern corporations. This Note finds that the natural entity theory is the only theory supporting corporate religious speech rights.

This Note also discusses how the First and Fourteenth Amendments may protect corporate religious speech. It illustrates how corporate theories have affected Supreme Court corporate speech cases, draws analogies from precedents protecting corporate political speech, and shows how a variety of free speech theories justify corporate religious speech protection. As a result, statutes like Title VII or New Jersey's Worker Freedom from Employer Intimidation Act must avoid infringing upon corporate religious speech rights. These conclusions receive support from our nation's historical commitment to religious pluralism.

8) Robert Luther III and David B. Caddell ( Knicely & Associates,Pacific Legal Foundation, The Rutherford Institute), Breaking Away from the 'Prayer Police': Why the First Amendment Permits Sectarian Legislative Prayer and Demands a 'Practice Focused' Analysis, 48 Santa Clara Law Review 569 (2008). Its abstract states:

This article discusses the reasons why the invocation of sectarian references is permissible under the seminal case regarding the constitutionality of legislative prayer, Marsh v. Chambers, despite the confusion within lower federal courts generated by reliance on the dicta of County of Allegheny v. ACLU, a plurality opinion that concerned religious symbols and not religious speech. In adherence to Marsh, courts should continue to enforce the constitutional and historical policy that permits individuals in the public square to choose their own words when engaging in religious speech that does not proselytize or disparage the faiths of others, as disallowing those permitted to pray the right to mention Jesus, Allah, Jehovah, or another deity in his or her prayer undermines diversity and the free speech rights of the speaker and renders these traditionally solemn occasions meaningless. The article analyzes all of the federal court opinions that have confronted this controversy, and after recognizing the strengths and weaknesses to the variety of approaches these Courts have applied, the article ultimately suggests a roadmap that encourages future courts to engage in a practice focused analysis. This approach draws judicial inquiry away from the actual language of the prayer and instead directs judicial attention to the facts that have culminated in the prayer opportunity. By enforcing the fundamental right to pray according to ones conscience, courts promote religious liberty and pay homage to the religious pluralism that is as much a part of America's past and present as the practice of legislative prayer itself.

9) Samuel Brown (University of Utah School of Medicine), The Translator and the Ghostwriter: Joseph Smith and William Phelps ,
34 Journal of Mormon History 26 (Winter 2008). Its abstract states:

A collection of Mormon political documents published in 1845 as the Voice of Truth contains several strange multilingual asides. Ostensibly authored by prophet Joseph Smith, these documents were in fact ghostwritten by William Wines Phelps, a newspaperman, poet, and recreational linguist. Phelps's authorship illuminates several aspects of the early history of Joseph Smith, including his sensibilities about language scholarship, his desire for scholarly legitimacy, and Phelps's significant contributions to the so-called Kirtland Egyptian Papers.

10) Gregory A. Kalscheur (Boston College - Law School), Civil Procedure and the Establishment Clause: Exploring the Ministerial Exception, Subject Matter Jurisdiction, and the Freedom of the Church. Its abstract states:

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper understanding of the role that the ministerial exception plays as a constitutional protection for the religious freedom of churches and other religious institutions. The Article explores the ministerial exception to antidiscrimination law as a case study of the extent to which the U.S. Constitution adequately protects the freedom of the church. The ministerial exception is best understood as a subject matter jurisdiction defense, and getting the right answer to this civil procedure question is not just a matter of citing the right procedural rule in the defendant's motion to dismiss. Instead, careful attention to this question leads to a better understanding of the foundations of our constitutional order. When courts clearly and consistently treat the ministerial exception as a limitation on their subject matter jurisdiction, they make a powerful statement about the foundations of limited government - they affirm the penultimacy of the state. Yet, even though the jurisdictional approach to the ministerial exception does provide crucial protection for one dimension of institutional religious freedom, the Article suggests that the jurisdictional approach alone cannot provide an adequate constitutional foundation for robust protection of the freedom of the church.

11) Robert C. Blitt (University of Tennessee College of Law) and W. Cole Durham (and Brigham Young University - J. Reuben Clark Law School ), Analysis of the Republic of Tajikistan's Draft Law 'About Freedom of Conscience and Religious Unions'. Its abstract states:

This article, prepared at the request of the International Center for Not-for-Profit Law (ICNL), provides an article-by-article detailed legal analysis of key shortcomings in Tajikistan's draft law About Freedom of Conscience and Religious Unions.

Based on their analysis, the authors provide recommendations for amendments directed at ensuring that the final draft law complies with Tajikistan's international and domestic human rights obligations.

12) Mimi Samuel, Focus on Batson: Let the Cameras Roll. Its abstract states:

While the Supreme Court outlawed discrimination in jury selection over 40 years ago, both empirical studies and candid interviews show that lawyers routinely rely on characteristics such as race, gender, and religion in striking prospective jurors. In large part, this practice continues because, when challenged, attorneys proffer non-verbal factors such as facial expressions, inattentiveness, eye contact (or lack thereof), or even laughing or coughing to justify their peremptory strikes. Without a way to assess the validity of these reasons, the trial judge and then the appellate court on review, have little ability to enforce the anti-discrimination prohibition set forth in Batson v. Kentucky. To give teeth to Batson's protection against discrimination in jury selection, both trial judges and appellate courts should use videotapes of voir dire proceedings to assess the credibility of attorneys proffering neutral reasons for striking jurors, particularly when those neutral reasons are based on non-verbal factors that cannot be assessed from a written transcript. Although many appellate courts have been reluctant to rely on "videorecords" for fear of intruding on the province of the fact finder, the Batson inquiry is unique enough and important enough to warrant a departure from reliance solely on a cold, written record.

JFB