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Scott Gaylord examines First Amendment rights regarding freedoms of speech and religion

The recent scholarship of Constitutional Law expert Scott Gaylord examines the scope of First Amendment speech and religious liberty under the Roberts Court.

Scott Gaylord
Associate Professor of Law
Jennings Professor and Emerging Scholar

B.A., Colgate University
Ph.D., University of North Carolina at Chapel Hill
J.D., Notre Dame Law School

His forthcoming Washington University Law Review article, “For-Profit Corporations, Free Exercise, and the HHS Mandate,” explores the free exercise rights of corporations under the First Amendment and the Religious Freedom Restoration Act. Based on his research, Gaylord authored amicus briefs for cases in the U.S. Court of Appeals for the Third, Sixth, Seventh and Tenth Circuits, challenging the requirement under the Patient Protection and Affordable Care Act that most employers provide health insurance that covers all Food and Drug Administration-approved contraceptive methods and sterilization procedures.

“Consistent with the Court’s treatment of corporations in Bellotti and Citizens United, for-profit and not-for-profit organizations have the right to uphold their religious views when deciding which pharmaceutical and medical choices should be made available to their employees through company healthcare plans,” said Gaylord.

Gaylord’s research also explores jurisprudence at the intersection of the Constitution’s Free Speech and Establishment Clauses, examining the impact of the U.S. Supreme Court’s newly minted government speech doctrine on legislative prayer and other forms of facially religious government speech. In his scholarship in this area, which is the basis for an amicus brief to the U.S. Supreme Court in Town of Greece v. Galloway on behalf of several county commissions in states across the country, Gaylord contends that certain prayer policies are constitutional under the Court’s prior holdings in Marsh v. Chambers and Pleasant Grove City v. Summum, even though particular prayers may contain sectarian references.

In addition, Gaylord’s research engages the debate across dozens of states about the best method for selecting judges. Through reviews of the interaction between recent First Amendment decisions of the U.S. Supreme Court relating to judicial independence and state laws regulating judicial selection, Gaylord has defended the public election of judges against challenges made by supporters of “merit” selection systems.

“Given that state courts hear roughly ninety-five percent of all cases filed, judicial selection is an important topic in North Carolina and nationally,” said Gaylord. “We need to define what we want from our judges, what makes a strong judiciary, and then analyze what is the best selection method to achieve those goals.”

Gaylord has analyzed the judicial selection issue for numerous national and statewide media outlets, including the NPR-distributed Diane Rehm Show and several major newspapers, as well as in scholarship, including a Michigan State Law Review article, titled “Unconventional Wisdom: The Roberts Court’s Proper Support of Judicial Elections,” and a North Carolina Law Review Addendum article, titled “Judicial Independence Revisited: Judicial Elections and Missouri Plan Challenges.”

Recently, Gaylord has been exploring the scope of the government speech doctrine in the context of specialty license plates. In particular, his research considers whether the government can control which messages are disseminated on specialty plates or whether these plates are quasi-public spaces such that private individuals have a right to express their preferred messages.

“Is it constitutionally acceptable for one group to be represented on a license plate while another group with an opposing view is denied the opportunity to express its message?” said Gaylord. “Whose First Amendment freedom of speech right is at stake when issuing and displaying specialty plates—that of the government or the license plate holder?”

Recently named the Jennings Professor and Emerging Scholar at Elon, Gaylord says that his primary passion is working with students to investigate the intricacies and nuances of our rights under the First Amendment and the Constitution generally.

“I am blessed to have the opportunity to work with students,” he said,” and to help them grow as thoughtful and ethical advocates who serve their clients, the courts and their larger communities.”

“I enjoy working with students and helping them grow to success,” he said. “That is the greatest reward I have.”

Learn more about Elon Law Professor Scott Gaylord.

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Philip Craft,
10/16/2013 8:35 AM