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Originalism V. Originalism: How James Madison's Understanding Of The Establishment Clause Can Help Combat Christian Nationalism, Patrick Sawyer

William & Mary Bill of Rights Journal

This Note will focus on what can be done to prevent Christian Nationalism from ending the Establishment Clause. Part I will focus on the cases that defined former Establishment Clause doctrine and how recent cases have done away with the parameters laid out in those earlier cases. Part II will focus on the understanding that James Madison had about the Establishment Clause. Part III will argue that Madison’s understanding of complete separation can and should be codified either under Congress’ enforcement power under the Fourteenth Amendment or the Spending Power of Article I. Part IV will consider how a statute …

George R. R. Martin's Faith Militant In Modern America: The Establishment Clause And A State's Ability To Delegate Policing Powers To Private Police Forces Operated By Religious Institutions, Andrew Gardner

William & Mary Bill of Rights Journal

Since the very founding of the United States, the complex relationship between government and religion has troubled and concerned lawmakers. The Establishment Clause of the First Amendment to the United States Constitution was one of the first attempts to help define and restrain the government's role in that nexus. Thomas Jefferson, in a letter praising the Establishment Clause, famously wrote that the clause "buil[t] a wall of separation between Church [and] State." However, the extent of the protections that the Establishment Clause was intended to provide is unclear, and judges as well as legal scholars have struggled with interpreting the …

From Civil Rights To Blackmail: How The Civil Rights Attorney's Fees Awards Act Of 1976 (42 U.S.C. § 1988) Has Perverted One Of America's Most Historic Civil Rights Statutes, Steven W. Fitschen

William & Mary Bill of Rights Journal

For fourteen years, members of Congress repeatedly introduced legislation directed at a single subject. A key underpinning for the necessity of the legislation was provided by the opinions of two Supreme Court justices. Yet, for the past nine years, Congress has gone silent on the same topic. This Article argues that it is past time for Congress to reconsider this topic, and that if it will not do so, the Supreme Court can rectify the situation without engaging in judicial legislation.

Perhaps the best view of Congress's efforts can be seen by examining the high-water mark of those efforts, which …

Secondary Meaning And Religion: An Analysis Of Religious Symbols In The Courts, Eric D. Yordy, Elizabeth Brown

William & Mary Bill of Rights Journal

In the Supreme Court’s most recent freedom of religion case, Justice Alito and Justice Ginsburg disagreed about the actual and potential meaning of the Latin cross, a traditional symbol of Christianity in which the upright leg of the cross is longer than the horizontal arms of the cross. Justice Alito stated that the Latin cross, while not losing its religious meaning, has acquired what might be called a “secondary meaning” as a symbol of World War I. He couched his analysis in language suggesting that a religious symbol’s meaning may depend on its circumstances. While he also denied that he …

Defining Fetal Life: An Establishment Clause Analysis Of Religiously Motivated Informed Consent Provisions, Justin R. Olson

Indiana Law Journal

No abstract provided.

Incorporation Of The Establishment Clause Against The States: A Logical, Textual, And Historical Account, Frederick Mark Gedicks

Indiana Law Journal

Incorporation of the Establishment Clause against the states through the Fourteenth Amendment is logically and textually impossible—so say most academics, a few lower-court judges, and a Supreme Court Justice. They maintain that because the Clause was originally understood as a structural limitation that protected state power against the federal government, it cannot restrain state power or fit within the Fourteenth Amendment texts that protect personal rights— indeed, that attempts to show that it does are laughable.

This purported incoherence and textual inconsistency enable anti-incorporation critics to avoid serious engagement of the anti-establishment dimensions of Reconstruction history. They also undermine the …

Same-Sex Marriage And The Establishment Clause, Geoffrey R. Stone

Villanova Law Review

No abstract provided.

Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett

Villanova Law Review

No abstract provided.

Even Silence Has No Prayer: The Third Circuit Sacks Coach's Silent Team Prayer In Borden V. School District Of East Brunswick, Edward A. Liva

Villanova Law Review

No abstract provided.

Subsidiary And Religious Establishments In The United States Constitution, Kyle Duncan

Villanova Law Review

No abstract provided.

Secularization, Religiosity, And The United States Constitution, Christopher L. Eisgruber

Indiana Journal of Global Legal Studies

This article draws upon leading works in the sociology of religion to assess what I shall call "the secularization claim" regarding the United States. It endeavors, in particular to clarify the possible meanings of "secularization,"and then to use these conceptual refinements to examine what sort of evidence exists that the United States has been secularized. Though it is not possible to falsify every version of the secularization claim, there is little evidence to support it, especially in its most prominent and politically relevant variations. The article then goes on to offer a preliminary analysis of to what extent, if any, …

Why Religion In Politics Does Not Violate La Conception Américaine De La Laïcité, Michael J. Perry

Indiana Journal of Global Legal Studies

La conception Am6ricaine de la Laĭcité consists principally of a constitutional norm-the nonestablishment norm-and of the laW that the U.S. Supreme Court has developed in the course of enforcing the norm. The nonestablishment norm forbids government-both the national government and state government-to "establish" religion. American laYcit6 also consists of what we may call "the morality of liberal democracy. " My aim in this essay is to explain why religion in politics does not violate American laYcit6; more specifically, my aim is to explain why political reliance on religiously grounded morality violates neither the nonestablishment norm nor the morality of liberal …

Religious Expression And Symbolism In The American Constitutional Tradition: Government Neutrality, But Not Indifference, Daniel O. Conkle

Indiana Journal of Global Legal Studies

In this article, I describe and analyze three principles of First Amendment doctrine. First, the Establishment Clause generally forbids governmental expression that has the purpose or effect of promoting or endorsing religion. Second, and conversely, private religious expression is broadly defined and is strongly protected by the Free Speech Clause. Third, as an implicit exception to the first principle, the government itself is sometimes permitted to engage in expression that seemingly does promote and endorse religion, but only when the expression is noncoercive, nonsectarian, and embedded within (or at least in harmony with) longstanding historical tradition. Comparing these three principles …

Davey's Deviant Discretion: An Incorporated Establishment Clause Should Require The State To Maintain Funding Neutrality, Nina S. Schultz

Indiana Law Journal

No abstract provided.

Context Is King: A Perception-Based Test For Evaluating Government Displays Of The Ten Commandments, Nathan P. Heller

Villanova Law Review

No abstract provided.

Religion, Speech, And The Minnesota Constitution: State-Based Protections Amid First Amendment Instabilities, Steven P. Aggergaard

William Mitchell Law Review

No abstract provided.

Nonestablishment Under God - The Nonsectarian Principle, Steven D. Smith

Villanova Law Review

No abstract provided.

God, Jesus, Allah And Yahweh Should Be Government Employees: How Zelman V. Simmons-Harris Can Establish A Constitutional Framework For Government Funding Of Faith-Based Services, Craig A. Newell Jr.

Villanova Law Review

No abstract provided.

Freethought Society V. Chester County And The Ten Commandments Debate: The Buck Stops Here For Establishment Clause Challenges To Religious Public Displays In The Third Circuit, Lauren A. Cates

Villanova Law Review

No abstract provided.

Applying The Good News Club Decision In A Manner That Maintains The Separation Of Church And State In Our Schools, James L. Underwood

Villanova Law Review

No abstract provided.

The Show Must Go On As Academic Freedom Saves The Day: But Where Does Academic Freedom End And The Establishment Clause Begin And Has The Seventh Circuit Restricted The Limited Public Forum In Linnemeir V. Board Of Trustees Of Purdue University, Drew Whelan

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

The Distinctive Place Of Religious Entities In Our Constitutional Order, Ira C. Lupu, Robert Tuttle

Villanova Law Review

No abstract provided.

Simmons-Harris V. Zelman 234 F.3d 945 (6th Cir. 2000), Elisha Winkler

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Proper Role Of Religion In The Public Schools: Equal Access Instead Of Official Indoctrination, James L. Underwood

Villanova Law Review

No abstract provided.

Removing A Brick From The Jeffersonian Wall Of Separationism: A Per Se Rule For Private Religious Speech In Public Fora, Ryan W. Decker

Villanova Law Review

No abstract provided.

The Art Of Line Drawing: The Establishment Clause And Public Aid To Religiously Affiliated Child Care, Elizabeth J. Samuels

Indiana Law Journal

No abstract provided.

Dancing In The Dark: The Eighth Circuit's Interpretation Of The Establishment Clause In Clayton By Clayton V. Place, Jeffrey A. Leon

Indiana Law Journal

No abstract provided.

Forbidden Fruit: Governmental Aid To Nonpublic Education And The Primary Effect Test Under The Establishment Clause, John E. Mckeever

Villanova Law Review

No abstract provided.

Aguilar V. Felton: Lemon Revisited - The Supreme Court's Tug-Of-War With The Entanglement Doctrine, Raymond L. Robin

University of Miami Law Review

No abstract provided.

And Now For A Moment Of Silence: Wallace V. Jaffree, Sylvia Sohn Penneys

University of Miami Law Review

No abstract provided.