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Articles 1 - 15 of 15
Full-Text Articles in Law
Religion, Division, And The First Amendment, Richard W. Garnett
Religion, Division, And The First Amendment, Richard W. Garnett
Richard W Garnett
Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …
The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett
The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett
Richard W Garnett
No abstract provided.
'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett
'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett
Richard W Garnett
This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component …
Do Churches Matter? Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett
Do Churches Matter? Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett
Richard W Garnett
In recent years, several prominent scholars have called attention to the importance and role of First Amendment institutions and there is a growing body of work informed by an appreciation for what Professor Balkin calls the infrastructure of free expression. The freedom of expression, he suggests, requires more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]. The intuition animating this scholarship, then, is that the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of, certain …
The Disincorporation Proclamation: Emancipating The Establishment Clause From The Fourteenth Amendment, Martin Wishnatsky
The Disincorporation Proclamation: Emancipating The Establishment Clause From The Fourteenth Amendment, Martin Wishnatsky
Martin Wishnatsky
No abstract provided.
Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk
Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk
Cornell Law Faculty Publications
We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key …
Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman
Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman
Pepperdine Law Review
America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do …
The Endorsement Test Is Alive And Well: A Cause For Celebration And Sorrow, Mark Strasser
The Endorsement Test Is Alive And Well: A Cause For Celebration And Sorrow, Mark Strasser
Pepperdine Law Review
No abstract provided.
The Priority Of Law: A Response To Michael Stokes Paulsen, Eugene Volokh
The Priority Of Law: A Response To Michael Stokes Paulsen, Eugene Volokh
Pepperdine Law Review
No abstract provided.
Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett
Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett
Pepperdine Law Review
This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom. Religious freedom, in the American tradition, is not …
The Priority Of God: A Theory Of Religious Liberty, Michael Stokes Paulsen
The Priority Of God: A Theory Of Religious Liberty, Michael Stokes Paulsen
Pepperdine Law Review
Professor Paulsen argues that religious freedom only makes entire sense as a constitutional arrangement on the premise that God exists, that God makes actual demands on human loyalty and conduct, and that those demands precede and are superior in obligation to those of the State. Religious freedom exists to protect the exercise of plausibly true understandings of God's actual commands, as against state power, and to disable state power to proscribe -- or prescribe -- religious exercise. The article explores four possible stances of society toward religious freedom, depending on whether society and state embrace the idea of religious truth …
Can We Please Stop Talking About Neutrality? Koppelman Between Scalia And Rawls, Chad Flanders
Can We Please Stop Talking About Neutrality? Koppelman Between Scalia And Rawls, Chad Flanders
Pepperdine Law Review
No abstract provided.
And I Don’T Care What It Is: Religious Neutrality In American Law, Andrew Koppelman
And I Don’T Care What It Is: Religious Neutrality In American Law, Andrew Koppelman
Pepperdine Law Review
No abstract provided.
Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer
Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer
Scholarly Works
The author discusses Galloway v. Town of Greece, a case which challenges official prayers at town council meetings. To provide the necessary background information for understanding the issues in Galloway, the author begins with a brief discussion of two other cases, Lemon v. Kurtzman and Marsh v. Chambers. The author then examines the district and circuit court decisions in Galloway and the Establishment Clause issues posed by the case. Next, the author notes issues raised by other lower court decisions involving legislative prayer after Marsh.
Towards the end of the article, to clarify and decide the constitutional issues, the author …
'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett
'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett
Journal Articles
This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component …