This past week I had the wonderful opportunity to interview Jim Oleske, a Professor of Law at Lewis & Clark. Professor Oleske is an expert on the First Amendment’s free exercise clause. A couple years ago, he wrote a prescient law view article that has made him something of a legal prophet (pun intended) in my mind. Below is our conversation about the free exercise doctrine generally and discussion on an important free exercise case heard by the Supreme Court this term. Enjoy!
Tyler Broker: In 2019, you wrote a law review article titled Free Exercise (Dis)Honesty? that identifies past and current dishonesties when it comes to free exercise cases. Can you explain how the Supreme Court has been dishonest in its approach to free exercise cases?
Jim Oleske: The central dishonesty is this: Over the past six decades, the court has disingenuously pretended to be faithfully applying precedent as it has repeatedly changed its position on the issue of whether there is a constitutional right to religious exemptions from neutral laws. The first flip came in 1963, when Justice Brennan led the Court to recognize a right to religious exemptions while wholly ignoring the teaching of prior cases that recognition of such a right would “permit every citizen to become a law unto himself.” The second flip came in 1990, when Justice Scalia led the court to repudiate a right to religious exemptions while implausibly claiming that such a right had never been recognized by the court. In fact, just one year earlier, Scalia himself cited four cases decided in the Brennan exemption era which, in Scalia’s own words, “held the Free Exercise Clause of the First Amendment required religious beliefs to be accommodated by granting religion-specific exemptions from otherwise applicable laws.”
Today, the court appears to be headed back to the pro-exemption position, and it has been granting religious exemptions to COVID restrictions without any serious effort to reconcile its orders with the Scalia era decisions of Employment Division v. Smith and City of Boerne v. Flores. Those decisions read the free exercise clause as only protecting against government targeting of religion, and the court sternly lectured Congress in City of Boerne that it could not purport to enforce free exercise rights by requiring exemptions from state laws “without regard to whether they ha[ve] the object of stifling or punishing free exercise.” But that is exactly what the court itself did in the two most recent COVID cases, South Bay II and Gateway City Church. A group of church-state scholars pointed out this inconsistency to the court in an amicus brief filed in the latter case, but the court granted an exemption anyway, offering no reasoning beyond a reference to its earlier decision in South Bay II, which in turn offered no majority opinion.
TB: In the law review article, you predicted (accurately) that the court was working toward overruling Employment Division v. Smith. Just two years later there is a case this very term, Fulton v. City of Philadelphia, where one of the issues presented is whether Smith “should be revisited.” Before we get into Fulton, however, I want to address the fact that many, including myself, would argue Smith has already been effectively overruled by the court’s recent “shadow docket” pandemic restriction cases. In these cases, the court seemed to abandon the reasoning used in Smith and adopt the “most favored nation theory.” Can you explain what the “most favored nation theory” is and whether you agree Smith has already been overruled?
JO: As a result of the COVID cases, there are now two very different versions of the most favored nation theory of religious exemptions. The original version, most closely identified with Professor Douglas Laycock, posits that even if a law generally applies to both religiously and nonreligiously motivated activity, a religious exemption must be granted if (1) the law contains so much as a single other exemption that is deemed “comparable” to the requested religious exemption, and (2) the government cannot justify the denial of the religious exemption under strict scrutiny. The revised version, articulated by Justice Kavanaugh in the COVID cases, removes the comparability trigger (“That threshold question does not require judges to decide whether a church is more akin to a factory or more like a museum, for example”). The Kavanaugh version seems to have informed the court’s finding of discrimination in the Roman Catholic Diocese of Brooklyn COVID case last fall, where church gatherings were regulated like other sustained gatherings (e.g., lectures, concerts, movie showings, spectator sports, theatrical performances), but differently than shopping at retail stores. Professor Laycock has described that finding as “pretty silly,” and I’m inclined to agree. But it’s also worth noting that even Laycock’s version of the most favored nation theory of religious exemptions is very difficult to square with Smith. The Smith Court emphasized that “[t]he First Amendment’s protection of religious liberty does not require” application of the compelling interest test to laws “of almost every conceivable kind.” But in explaining how often the most favored nation theory would require strict scrutiny to be applied, Laycock has written this: “[T]hink about it. If a law with even a few secular exceptions isn’t neutral and generally applicable, then not many laws are.” So if the court’s COVID cases are properly read as adopting the most favored nation theory, whether it’s the Laycock version or the Kavanaugh version, I do think it would be fair to treat them as overruling Smith sub silentio.
TB: Now let’s get into Fulton. (For any who are not aware, here are the facts of the Fulton case: Philadelphia contracts with about 30 nonprofit agencies to help it assess whether families satisfy state criteria for taking in foster children. Those criteria do not require the would-be foster parents to be married, much less straight. And a city ordinance requires that all those providing services on the city’s behalf must not discriminate on the basis of race, sex, or sexual orientation.When the city learned that two of its contractors — Catholic Social Services (CSS) and Bethany Christian Services — categorically refused to certify fully qualified families if they were headed by same-sex couples, it informed both groups that such refusals violated the terms of the contract. Bethany agreed to comply with the contract by not excluding same-sex couples, and Philadelphia continues to contract with it. But CSS refused, so the city terminated its contract. The city continues to pay CSS approximately $17 million every year, however, to provide a wide range of other services to children and families in the foster care system. The city has merely declined to hire CSS to certify foster families if CSS will not apply the government’s criteria for that certification. CSS sued arguing that the city’s refusal violates free exercise of religion.)
The basic question in Fulton, is whether the constitutional guarantee of religious freedom allows a religious organization to discriminate against same-sex couples in carrying out a government program/contract. If the court were to apply the Smith doctrine, this would be a very easy question to answer right?
JO: Yes, with one caveat. In Masterpiece Cakeshop, the court invalidated a civil rights enforcement action on the ground that the specific proceedings in the case were tainted by religious hostility, and it’s possible the court might do something similar in Fulton to avoid the bigger legal issues in the case. I don’t think that’s terribly likely, as the court has now been dodging the bigger issues for several years while individual justices continue to take shots at Smith, but if they want to kick the can again, a Masterpiece redux might be their out.
TB: Would you agree that a key distinction in Fulton that separates it from other religious liberty cases is that it is not based on a “negative right’s” claim (i.e., a claim where an individual or organization is asking to be free from government interference)? Rather, the religious organization in Fulton seems to be demanding an entitlement in millions of dollars in government funds to perform a government service, while violating the terms of the service by discriminating against people seeking to participate in the government program.
JO: That’s an excellent question, and it goes to another area of inconsistency in the court’s past exemption doctrine. In its first case granting a religious exemption, Shebert v. Verner, the court emphatically rejected a distinction between government prohibitions or compulsions on the one hand and government denials of benefits on the other, and the court applied strict scrutiny to the denials of exemptions in multiple unemployment compensation cases between 1963 and 1989. But in another case decided during the Sherbert era, Bob Jones University v. United States, the court seemed to rely on the benefits/prohibition distinction when rejecting an exemption claim, emphasizing that a “[d]enial of tax benefits” would not absolutely prevent schools that wanted to discriminate on the basis of race “from observing their religious tenets.” A plurality of the court argued for formalizing the benefits/prohibition distinction in Bowen v. Roy, but that effort never garnered a majority before the court walked away from the exemption doctrine more thoroughly in Smith. In any event, I think the city of Philadelphia and the intervenors are much better off relying on the government-contractor/regulated-private-party distinction than the benefits/prohibition distinction, and that’s exactly what they did in their briefs to the Court.
TB: But if Smith has already been overruled, what does this say about the expected outcome in Fulton, and the outcome of every other nondiscrimination law in this country?
JO: First, it’s important to keep in mind that even if the court were to formally overrule Smith and return to a regime in which neutral government regulation that incidentally burdens religious activity is subject to strict scrutiny, there is a very strong argument that strict scrutiny should not apply in Fulton. And that is because Fulton involves the terms under which a government program is operated, with the religious entities involved being subject to nondiscrimination rules only in their capacity as government contractors. In its pre-Smith case law, the court distinguished between situations where religious claimants were asking to be exempted from burdens placed on their private conduct and cases where claimants were asking for governmental programs to be operated consistent with their religious beliefs, and the court only applied strict scrutiny in the former context. If the court does not adhere to that line in Fulton, and holds that Catholic Social Services has the right to perform government services without following rules that apply to other government contractors, it will have gone far beyond merely overruling Smith.
As for the fate of nondiscrimination laws more broadly, it depends on how far beyond the pre-Smith law the court might go. For example, even in the pre-Smith era, the court declined to extend its exemption doctrine to the commercial context, reasoning that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Will that limit be discarded in a new exemption era? If it is, and if the government must justify the application of civil rights laws to religious business owners, will eradicating sexual-orientation discrimination and gender-identity discrimination be treated as a “compelling interest” by the court, as eradicating race and sex discrimination have been in the past? These are some of the questions the court will confront if it overrules Smith.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.
As firms continue throwing their lot in with the new special bonus schedule, about the only drama left is figuring out how firms elect to pay out their bonuses. Will they be April-September or May-November? Will they be equally divided payments or backloaded to the latter date?
White & Case has matched the prevailing market rate, but how did they answer these questions?
It’s a June 28 and December 28 payout — a bit on the late side — and it’s a backloaded payment, so associates had best be ready to stick it out until 2022.
| June | December | Total | |
| Class of 2020 | $4,500 | $7,500 | $12,000 |
| Class of 2019 | $6,000 | $10,000 | $16,000 |
| Class of 2018 | $12,000 | $20,000 | $32,000 |
| Class of 2017 | $16,500 | $27,500 | $44,000 |
| Class of 2016 | $19,500 | $32,500 | $52,000 |
| Class of 2015 | $22,200 | $37,000 | $59,200 |
| Class of 2014 | $24,000 | $40,000 | $64,000 |
| Class of 2013 & up | $24,000 | $40,000 | $64,000 |
Bonuses are for associates on track to make their hours for the year. If associates miss the June date but catch up by year’s end, they’ll be made whole.
Congrats!
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When is a student’s sexuality a fit topic for classroom debate?
All day, every day, at least according to the Sixth Circuit which ruled last week that a university violated a professor’s First Amendment rights by forcing him to use appropriate pronouns for students in his class. Because “academic freedom” to discuss a “hotly contested matter of public concern” makes an individual student’s gender a fit topic for classroom debate.
Professor Meriwether, a professor at Shawnee State University is a “devout Christian” who “strives to live out his faith each day” and believes that “God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.”
“Being faithful to his religion was never a problem at Shawnee State,” Judge Amul Thapar recounts ominously. “But in 2016, things changed.”
UH OH. What changed? Well, here’s how Prof. Meriwether described it in an opinion piece at The Hill.
On the first day of my political philosophy class at Shawnee State University in the spring of 2019, a biologically male student raised his hand and I called on him, unwittingly using the now-incendiary words, “Yes, sir.”
Because the real victim here is the teacher who refused to address a female student using appropriate pronouns, not the student who was singled out for repeated misidentification or addressed only by her last name when everyone else was Ms. X or Mr. Y, a “Socratic” practice Prof. Meriwether insists is vital to “help[] them view the academic enterprise as a serious, weighty endeavor” and “foster an atmosphere of seriousness and mutual respect.”
Mutual respect being the professor’s highest priority, obviously.
The school told Prof. Meriwether to cut it out. He could either refer to all students by their last names only, something the court refers to as a “practical impossibility that would also alter the pedagogical environment in his classroom,” or he could just treat the student the way he did every other woman in the room, “even though doing so would violate Meriwether’s religious beliefs.”
And even though the Supreme Court already ruled that discrimination on the basis of gender identity violates Title VII’s prohibition on discrimination on the basis of sex, the Sixth Circuit is still dribbling out nonsense about “the public’s interest in exposing our future leaders to different viewpoints.”
Wouldn’t these future leaders benefit from forcing one of their cohort to defend her gender identity via “robust and insightful in-class discussion” with the teacher every time she was called on?
Judge Thapar is so committed to the bit that he invents a strawman university which might order teachers to misgender all students, codifying sex discrimination into university code and inviting a million anti-discrimination lawsuits. It could happen!
Remember, too, that the university’s position on titles and pronouns goes both ways. By defendants’ logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronouns—no matter the professors’ own views
Then the court goes on to endorse, not just the right of academics to express personal opinions on issues of gender identity, but the right to treat students differently on the basis of those opinions.
Meriwether did just that in refusing to use gender-identity-based pronouns. And the “point of his speech” (or his refusal to speak in a particular manner) was to convey a message. Id. at 1187. Taken in context, his speech “concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes.” Professors’ Amicus Br. at 1. That is, his mode of address was the message.
Referring to it as a “Hobson’s Choice” between adhering to “the university’s orthodoxy” or betraying his religious faith, the court finds that the university policy violates both the Free Exercise Clause and Freedom of Speech. Because if you can’t treat trans women differently from every other woman, then the woke terrorists win.
Not to put too fine a point on it, this opinion is fucking gross. Fingers crossed for a better en banc panel.
Elizabeth Dye lives in Baltimore where she writes about law and politics.
We recently learned that the first major in-person legal tech conference since the beginning of lockdown will take place in late August. Technically, ILTACON is running a hybrid model allowing remote attendance in addition to the in-person show, but the point remains that we’re actually going to get a chance to see people face to face in a few months.
I’m excited about the opportunity to have real human conversations again. Zoom has kept us from completely losing touch, but there’s something about being in the same room that technology can’t capture.
But it turns out, there are a lot more people still uneasy about the idea of live events. During the last Legaltech Trending News group chat on Clubhouse (Wednesdays 12:30 Eastern), we were discussing ILTACON and the Legal Marketing Association conferences and a lot of the audience expressed reservations about physical conferences even in late 2021. The mood was summed up by a concern that “we’ve been hearing this pandemic was three weeks away from being solved for a year now.”
Except the invention of multiple vaccines seems to be a critical intervening event since armchair prognosticators were musing about summer heat killing off the virus. There are reasons for continuing concern. Herd immunity is going to be an uphill battle in certain parts of the country as white Republicans refuse to get vaccinated. Variants could eventually develop that escape the vaccine though to date the vaccines are performing well against everything evolution is throwing at them. However, all in all the process is working.
Which brings us back to the upcoming conferences. If you trusted the science on the front end of this pandemic and strapped on masks, stayed home, and washed your hands repeatedly, then you need to trust the science on the back end when it’s telling us that we have high efficacy vaccines. One of the biggest incentives for vaccine adoption is the promise that you can start venturing back into society after you’re done.
So, more than vaccine numbers, I’m going to be using conference attendance as my metric for how successfully we’ve embraced the science.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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It’s been a week since Davis Polk blew Willkie Farr’s special bonus scale out of the water, and all the while, we’ve been wondering when Cravath — the perennial bonus leader — would step in to offer a tip of its hat to the credence of these bonuses. That time is finally here.
Cravath hath spoken, and the word is good, and the bonuses are BIG.
Unlike in the fall, when Cravath waited until year-end bonus time to match the Davis Polk special bonus scale, the firm is doing it right now, along with the rest of Biglaw firms that have already done so. Here’s the bonus scale Cravath is offering, payable on April 30 and September 30:
As noted in the firm’s memo, there are no billable hours attached to these special bonuses, and “virtually all [Cravath] associates will receive the full bonuses.” That’s fantastic news. Even more fantastic is that the firm says it expects regular year-end bonuses will be “no less than” its regular year-end bonus levels — and that means associates can expect to receive up to $100,000, depending on class year.
Did Cravath raise the market here? No, of course not. But what it did do was let all other Biglaw firms know that it’s time to pay up. We expect to receive a flood of bonus memos from other Biglaw firms now that Cravath has entered the ring.
Congratulations to all!
(Flip to the next page to see the full memo from Cravath.)
Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.
And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!
Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.
As the oldest millennials turn 40 this year and increasingly take on law firm partner roles, we want to know how unique — or not — the generation’s outlook on law firm life truly is.
As the final installment in this year’s series of surveys conducted in partnership with our friends at Major Lindsey & Africa, we want to ask about topics as varied as law firm leadership, compensation practices, legal industry bias, and whether partnership is still the brass ring.
Please take a couple of minutes and share your thoughts here. (And please note we are not exclusively interested in hearing from millennials; lawyers of all ages are encouraged to take the survey!)
If you have not taken the first survey in our series, “Priorities,” you can do so here. And click here to take our second survey, “Goals.”
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As the minutes tick by .6 at a time, attorneys at Biglaw firms across the country are impatiently waiting to see whether they’ll soon be the lucky recipients of a special bonus memo.
The wait is over at Lowenstein Sandler, where associates, counsel, and senior counsel just found out that bonus bucks are not only on the table, but they’re a match for the incredible Davis Polk scale. “We are extremely proud of the resilience and adaptability exhibited by so many of our colleagues that resulted in a successful 2020 and first quarter 2021,” writes Gary Wingens, the firm’s chair and managing partner. “Thank you for contributing to that success.” Here’s what the bonus scale looks like at Lowenstein (full memo available on the next page):
| Salary Class | June 30 Bonus | September 30 Bonus |
Total |
| 2020 | $4,500 | $7,500 | $12,000 |
| 2019 | $6,000 | $10,000 | $16,000 |
| 2018 | $12,000 | $20,000 | $32,000 |
| 2017 | $16,500 | $27,500 | $44,000 |
| 2016 | $19,500 | $32,500 | $52,000 |
| 2015 | $22,200 | $37,000 | $59,200 |
| 2014 | $24,000 | $40,000 | $64,000 |
| 2013 | $24,000 | $40,000 | $64,000 |
Bonuses will be paid to those who are on track to reach an annualized minimum of 1800 client billable hours and at least 150 firm directed hours (e.g., pro bono, diversity efforts, recruiting, practice group activities, or additional billable hours) from October 1, 2020 through the applicable measurement dates (April 30, 2021 and July 31, 2021). The firm will offer catch-up payments for anyone who misses the market on April 30, but meets the eligibility threshold at July 31.
The good news doesn’t end there, because as noted by Wingens, these special bonuses are in addition to Lowenstein’s regular year-end bonuses, which are expected to be paid “in at least the same overall magnitude as in 2020.”
Congratulations to everyone at Lowenstein!
(Flip to the next page to see the full memo from Lowenstein Sandler.)
Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.
And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!
Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.
With the COVID-19 vaccine rollout underway across the country, lawyers and staff members alike are still wondering what their Biglaw firms are planning to do. The move to work remotely due to the spread of the deadly novel coronavirus came quickly, but decisions related to vaccination plans seem to be moving in reverse warp speed.
At the moment, it seems as if many firms will be encouraging, not requiring (like Davis Wright Tremaine), employees to receive vaccinations before returning to the office. Some of those firms will even offer paid time off to make it easier for people to get the job done for their own and others’ safety.
Dechert is offering lawyers and staff across the globe up to eight hours of paid leave to get their shots, and Norton Rose Fulbright is offering the same to its U.S. personnel. The American Lawyer has additional details:
“Health and safety is a priority for us, so we are giving our people up to eight hours of paid time off to get their COVID-19 vaccinations,” Norton Rose U.S. managing partner Jeff Cody said in a statement. …
Dechert CEO Henry Nassau and policy committee chair Andy Levander put the vaccine news in the context of a wider update about the firm’s plans for returning to the office.
“The widening availability of vaccines, along with the improving overall trends in COVID-19 cases, have us optimistic that we’ll be able to start getting together in person again soon,” the pair said. “This will be a gradual and thoughtful process and will be specific to each individual location, but we know many of you are looking forward to meeting again with friends, clients and colleagues.”
Other firms, like Hogan Lovells and Robinson & Cole, have said employees need not use paid time off, or existing time off, to get their vaccinations (R&C will allocate an additional four hours of PTO in New York and two hours in other state offices). If this is the way that the legal profession can finally return to business as usual, then it’s no wonder that firms are willing to allow personnel to take their time to do it.
What are your law firm’s plans when it comes to COVID-19 vaccines? Let us know.
Dechert, Norton Rose Fulbright to Offer Paid Leave for COVID Shots [American Lawyer]
Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.
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Buckle up folks, this one’s a doozy.
As reported by RollOnFriday, the conduct U.K. attorney Rob Kearney is accused of is more than eyebrow raising. Kearney was suspended for six month by the Bar Tribunals and Adjudication Service (BTAS) and banned from taking on students that need work experience over sexual harassment. As per the BTAS, Kearney told a woman on a mini-pupillage in 2015 that “eating pineapple makes semen taste better” and he kept his nails short “because you can’t finger women with long nails.”
Wowser. But it didn’t end there.
According to the BTAS, Kearney also:
- asked her if she had ever had sex in her parents’ house, and for the details;
- told her about sex with his wife;
- said she should wear skirts and heels instead of trousers and asked her bra size; and
- when the two were alone in a lift, leaned in to smell her neck and asked what perfume she was wearing.
But it isn’t the first sexual harassment incident involving Kearney.
At a networking event in 2017 he boasted to a male pupil that he had “buttfucked another chambers dry”.
In an unsuccessful attempt to cover his arse, Kearney checked the pupil’s age before asking him whether he had “ever taken a woman from behind”. Describing Kearney’s line of questioning as “uncomfortable”, the tribunal reprimanded the barrister and fined him £1,000.
So, folks are mighty miffed that Kearney has received such a small suspension for his shocking conduct. And they’ve even responded to that criticism:
Reacting to the criticism of its perceived leniency, the Bar Standards Bar said in a statement, “we are aware of current concern from the public and the profession about the level of sanctions imposed in cases of sexual misconduct”. It said its Sanctions Guidance “is currently under review” and that it was planning to consult with the public in April on proposals to “amend the recommended ranges of sanctions for specific types of breaches”.
Kearney is also out at his chambers — Lincoln House Chambers said Kearney resigned in March of 2020:
“We consider any allegation of sexual harassment to be very serious”, said Director of Clerking David Wright. “Everyone is entitled to be treated with dignity and respect in their work or training”.
Hopefully the outrange translates into some more consequences for Kearney.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
