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Louisiana recently enacted a law requiring a Ten Commandments display in every public school classroom from kindergarten to college. Forty-five years ago, the U.S. Supreme Court ruled that a nearly identical attempt to introduce Christianity into the public schools violated the Establishment Clause-the clause in the U.S. Constitution's First Amendment that requires some degree of separation between church and state. Unfortunately, the U.S. Supreme Court has since reduced the Establishment Clause to a shadow of its former self. It replaced doctrinal tests that protected religious minorities with a history and tradition test that is easily manipulated and that presumes the constitutionality of any longstanding religious practice. It has also developed multiple strategies for dodging establishment claims such as \"secular-washing\"-recharacterizing an inherently religious symbol as secular. However, the U.S. Constitution and the U.S. Supreme Court do not have a monopoly on protecting rights, including the right against establishment. As \"New Judicial Federalism\" highlights, our dual system of government means state constitutions and their establishment clauses provide another layer of constitutional protection. Moreover, state courts are not obliged to interpret their establishment provisions in lockstep with the Supreme Court, even in the rare cases where the text is the same. Accordingly, state courts can and should interpret their establishment provisions independently of federal jurisprudence to provide more robust protection when confronted with laws like Louisiana's. Although the U.S. Supreme Court has all but abandoned religious minorities, state courts need not follow in its footsteps. Even if state courts feel bound to rely on the history and tradition approach, they do not need to ground their analysis in blind acceptance of past practices as the Supreme Court regularly does. Unquestioning reliance on historical practices overlooks that the Establishment Clause sought to break with past practices and that past practices (such as anti-Catholic Protestantism in public schools) do not always live up to constitutional ideals. Instead, state courts can invoke foundational principles such as prohibiting religious favoritism and requiring secular justifications. State-mandated Ten Commandments posters on every public schoolroom wall undermine both principles. Foisting the sacred text of one or two religions onto students of various (or no) faiths epitomizes religious favoritism, and no persuasive secular reason justifies such an imposition.

Because of the government speech doctrine, public school curriculum restrictions like \"Don't Say Gay\" mandates and bans on teaching critical race theory may escape free speech review. This exemplifies \"First Amendment capture.\" The term \"capture\" comes from \"agency capture,\" which occurs when regulated entities effectively gain control over the agency meant to oversee them. First Amendment capture occurs when speech becomes controlled by the government when the Free Speech Clause should be regulating the government.

Because of the government speech doctrine, public school curriculum restrictions like \"Don't Say Gay\" mandates and bans on teaching critical race theory may escape free speech review. This exemplifies \"First Amendment capture.\" The term \"capture\" comes from \"agency capture,\" which occurs when regulated entities effectively gain control over the agency meant to oversee them. First Amendment capture occurs when speech becomes controlled by the government when the Free Speech Clause should be regulating the government. Generally, laws that censor content trigger strict scrutiny under the Free Speech Clause. Curriculum bans, however, may trigger no scrutiny at all. Under the government speech doctrine, government speech is not subject to any free speech scrutiny. Teachers will struggle to challenge restrictions about what they may teach in the classroom because their speech \"pursuant to official duties\" is considered government speech. Likewise, students may not be able to challenge these restrictions on what they are allowed to learn if curricular decisions are deemed government speech-a possibility given unclear rules for evaluating censorship of public school curriculum. Although some lower courts have interpreted Supreme Court precedent to find that curriculum decisions violate the Free Speech Clause if motivated by political or partisan reasons rather than legitimate pedagogical ones, others have concluded that the Free Speech Clause does not apply because curriculum decisions represent government speech. This Essay argues that the government speech doctrine overreaches in at least two ways. First, it classifies as \"government speech\" speech that might actually be mixed speech-that is, speech with both government and private speakers. Second, it classifies as \"government speech\" streams of speech that the audience has as much a stake in, if not more, than the speaker. The Free Speech Clause, after all, protects the free flow of speech, not just speakers. In both cases, the Essay concludes, the speech should undergo some level of Free Speech Clause review.

Support for a Christian America is a core component of Christian nationalism. That is, Christian nationalism conceives of religion and government as wholly overlapping rather than separate spheres. The proliferation of Christian legislative prayers at local governments around the country both reflects and strengthens Christian nationalism. \"Legislative prayers\" is the term used for the opening prayers that start many sessions of local government. The Supreme Court has addressed the constitutionality of legislative prayers two times, upholding them each time. One of the goals of the Establishment Clause was to stave off developments like Christian nationalism and its religious (and racial) hierarchies. Yet these legislative prayers, in addition to reflecting Christian nationalist beliefs, inevitably foster them as well. Here, Corbin argues that it would be more in keeping with the underlying values of Establishment Clause, and better for the US, to eliminate legislative prayers entirely.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost.In fact, neither the Free Exercise Clause nor the Establishment Clause necessitated the ministerial exception. Under Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the ADA is a neutral law of general applicability. In attempting to distinguish Smith, the Supreme Court not only created an incoherent free exercise jurisprudence but also ignored Jones v. Wolf, which explicitly rejected blanket deference to religious institutions in matters of internal governance. Jones further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether the schoolteacher was a minister entangled the Court in religious doctrine more than simply adjudicating her retaliation claim would have. [PUBLICATION ABSTRACT]

Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the \"contraception mandate\" violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This Essay explains why the contraception mandate violates none of them. [PUBLICATION ABSTRACT]

Photography, a branch of art, has long been recognized as a mode of communication in much the same way words are.17 Baking, in contrast, has not. [...]the photographers' challenge also raises the question of whether conduct involving words or photographs necessarily amounts to speech that is covered by the Free Speech Clause. [...]relatedly),297 I want to resist that impulse to automatic sympathy because I think we tend to overvalue First Amendment rights, and that overvaluing tends to come at the expense of equality.298 American exceptionalism vis-à-vis hate speech exemplifies this tendency.

Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts, and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Nonetheless, this unfounded assertion has been used to justify laws requiring that women seeking abortion be provided with certain information lest they later suffer from post-abortion trauma. In particular, some states now require that doctors read to their abortion patients a state-scripted message describing their pregnancy as a \"whole, separate, unique living human being.\" Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. Whether it be substantive due process, equal protection, or the focus of this article -- the First Amendment -- the rules are different when the claim involves abortion.