Issues

The ministerial exception is generally seen as safeguarding the autonomy of religious institutions in employment decisions, but does it also serve as a roadblock to religious freedom? The recent dismissal of the gender discrimination lawsuit by Rev. Dr. Eboni Marshall Turman against the historic Abyssinian Baptist Church calls into question whether the breadth of the exception promotes religious freedom in all contexts. This article argues that the ministerial exception, although designed to protect religious autonomy, may paradoxically undermine that very autonomy when applied to faith communities, like Abyssinian, that have voluntarily embraced anti-discrimination as part of their theology and praxis. These religious communities view the dismantling of oppressive systems as a sacred obligation. As a result, they do not seek immunity from the laws that do this dismantling work because to do so would run afoul of their religious beliefs. Winnifred Sullivan explains that “religious freedom, affirmatively understood, must mean something like the freedom not to be free, in ways not already constrained . . . .” Therefore, when a religious denomination voluntarily commits to upholding anti-discrimination laws, we must also view this choice as an exercise of religious freedom. This article outlines the key features of organizations that adhere to a theology of anti-discrimination. It then uses limited case studies to demonstrate how this theology functions. Finally, it proposes a contextual approach to the ministerial exception—one that respects not only the right of religious institutions to resist state interference, but also their right to embrace it when doing so reflects their deepest convictions.

This Article presents a policy and a structural response to a national capacity failure in American higher education: the concentration of endowment wealth in a handful of elite institutions, while most colleges, those that educate the majority of Americans, including most low-income, first-generation, and underrepresented students, operate under permanent financial constraint, and remain drastically underfunded. This imbalance carries a profound social cost. It weakens equity, limits inclusion, and undermines the promise of upward mobility that higher education is supposed to deliver. The proposed framework introduces a progressive excise tax on endowment investment returns, scaled by per-student wealth. Universities with excessive capital would be required to meet minimum spending thresholds for academic priorities such as need-based aid, tenure-track hiring, and research infrastructure. The revenue would support two federal programs. The first, a permanent Education Equity Fund, would deliver formula-based support to under-resourced institutions based on enrollment, student need, regional disadvantage, and research potential. The second, a Competitive Capacity-Building Grant Pool, would fund high-impact institutional growth projects at colleges historically excluded from major federal research investment. This model provides a concrete, enforceable path toward equity, inclusion, and upward mobility. It strengthens institutions that serve diverse student populations without undermining the success or autonomy of elite universities. Rather than punishing excellence, the proposal balances the needs of top-tier schools and their students with broader public interests and needs. Overall, the model ties tax privileges to public purpose and accountability and offers a blueprint for a higher education system that is not only highly competitive and innovative but also equitable, inclusive, and fair.

This Article examines the rhetorical structures courts and advocates deploy in two distinct lines of cases adjudicating parental rights claims affecting transgender youth: cases challenging state bans on gender-affirming care, and cases challenging school policies supportive of transgender students. Although the legal basis for the parental rights claims in each set of cases is the same—substantive due process rights under the Fourteenth Amendment—the alignment of parental interests with those of their children diverges between the two sets. In the gender-affirming care cases, parents act in concert with their children’s expressed interests; in the school policy cases, parents seek to override them. Despite this difference, the Article demonstrates that courts and advocates in both sets of cases deploy similar rhetorical motifs of freedom and constraint, and they adjust the characterization of the asserted parental rights to fit those motifs. Courts that reject parental rights claims valorize the freedom of the legislature or school district to act and narrow the asserted right; courts that vindicate parental rights claims cast the government actor as an agent of constraint and broaden the asserted right. These rhetorical structures limit the capacity of courts to think more expansively about the parent-child relationship.  They also place the two lines of cases on a doctrinal collision course, a tension already visible in the Supreme Court’s recent decisions in U.S. v. Skrmetti, Mahmoud v. Taylor, and Mirabelli v. Bonta. The Article further argues that the alignment between parental and child interests offers an underutilized analytical framework that judges could deploy to help resolve this tension and to better promote the dignity and well-being of transgender youth. 

This Article first documents institutional timidity in fair housing enforcement through Rubinowitz’s empirical account of HUD and then extends the analysis to higher education admissions. It shows that universities defending affirmative action uniformly adopted the diversity rationale while declining to argue that race-conscious admissions correct for bias embedded in their own criteria. These choices did not merely weaken outcomes; they also helped produce the doctrinal frameworks that later constrained them. In identifying institutional timidity as a mechanism of doctrinal production, this Article extends Rubinowitz’s insights across domains and into constitutional law. It concludes by proposing strategies that shift civil rights advocacy away from institutions whose incentives make weak arguments rational and toward constituencies positioned to advance stronger ones.