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Articles 1 - 15 of 15
Full-Text Articles in Law
Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn
Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn
Law Faculty Publications
On September 30, 2022, several members of the faculty of the Thomas R. Kline School of Law of Duquesne University presented a Continuing Legal Education program, New Supreme Court Cases: Duquesne Law Faculty Explains, reviewing these developments. Duquesne Law Review graciously invited the faculty panel to contribute their analysis of these cases from the Supreme Court's 2021- 2022 term for inclusion in this symposium issue of the Law Review.
The Case For The Current Free Exercise Regime, Nathan Chapman
The Case For The Current Free Exercise Regime, Nathan Chapman
Scholarly Works
How the Supreme Court ought to implement the Free Exercise
Clause has been one of the most controversial issues in U.S. rights discourse
of the past fifty years. In Fulton v. City of Philadelphia, a majority of the
justices expressed dissatisfaction with the standard articulated in
Employment Division v. Smith, but they could not agree on what ought to
replace it. This Essay argues that focusing on whether to overrule Smith is a
distraction from the sensitive task of implementing the Free Exercise Clause.
This is not because Smith was “right,” but because (1) the history and
tradition are both …
Equality, Animus, And Expressive And Religious Freedom Under The American Constitution: Masterpiece Cakeshop And Beyond, Daniel O. Conkle
Equality, Animus, And Expressive And Religious Freedom Under The American Constitution: Masterpiece Cakeshop And Beyond, Daniel O. Conkle
Books & Book Chapters by Maurer Faculty
Professor Conkle's contribution to this volume, pre-print attached, is the chapter "Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond."
CHAPTER ABSTRACT: Does the First Amendment protect religious wedding vendors from anti-discrimination laws that require them to provide goods or services for same-sex weddings? The fundamental question is whether equality or religious freedom should prevail in this setting, but the complexities of American free speech and free exercise law—exacerbated by the Supreme Court’s decision in Masterpiece Cakeshop—have obscured the debate with dubious distinctions and highly contentious rationales and arguments. In this Essay, I present …
Standing For Standing Rock?: Vindicating Native American Religious And Land Rights By Adapting New Zealand's Te Awa Tupua Act To American Soil, Malcolm Mcdermond
Standing For Standing Rock?: Vindicating Native American Religious And Land Rights By Adapting New Zealand's Te Awa Tupua Act To American Soil, Malcolm Mcdermond
Dickinson Law Review (2017-Present)
On February 23, 2017, the Standing Rock Sioux Tribe (“Tribe”) was forced to disband its nearly year-long protest against the construction of the Dakota Access Pipeline, which threatened the integrity of its ancestral lands. The Tribe sought declaratory and injunctive relief in the United States District Court for the District of Columbia, but the court ruled against the Tribe and failed to protect its interests. While the United States was forcibly removing Indigenous protesters, other countries were taking steps to protect Indigenous populations. In unprecedented legislative action, New Zealand took radical steps to protect the land and cultural rights of …
The Free Exercise Of Religious Identity, Lauren Sudeall
The Free Exercise Of Religious Identity, Lauren Sudeall
Vanderbilt Law School Faculty Publications
In recent years, a particular strain of argument has arisen in response to decisions by courts or the government to extend certain rights to others. Grounded in religious freedom, these arguments suggest that individuals have a right to operate businesses or conduct their professional roles in a manner that conforms to their religious identity. For example, as courts and legislatures have extended the right to marry to same-sex couples, court clerks have refused to issue marriage certificates to such couples, claiming that to do so would violate their religious beliefs. Similarly, corporations have refused, for reasons grounded in religious identity, …
Corporate Religious Liberty: Why Corporations Are Not Entitled To Religious Exemptions, Caroline Mala Corbin
Corporate Religious Liberty: Why Corporations Are Not Entitled To Religious Exemptions, Caroline Mala Corbin
Short Works
No abstract provided.
Experimenting With Religious Liberty The Quasi-Constitutional Status Of Religious Exemptions, Bruce Ledewitz
Experimenting With Religious Liberty The Quasi-Constitutional Status Of Religious Exemptions, Bruce Ledewitz
Bruce Ledewitz
An Incompetent's Right To Withdraw From Treatment: Cruzan V. Missouri Department Of Health , Mary A. Watson
An Incompetent's Right To Withdraw From Treatment: Cruzan V. Missouri Department Of Health , Mary A. Watson
Pepperdine Law Review
No abstract provided.
Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz
Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz
St. Mary's Law Journal
The Establishment Clause crisis exists due to the Supreme Court’s promise that America would have a secular government—meaning one which was neutral between religion and irreligion, as well as being neutral to all religions. This promise evolved pursuant to the Supreme Court’s interpretation of the Establishment Clause. Nevertheless, the commitment to neutrality was never carried to fulfillment by the Court. The crisis may be illustrated by Congress’ addition of the words “under God” to the Pledge of Allegiance in 1954. This addition seemed to violate the promise of neutrality made by the Supreme Court in Everson v. Board of Education …
Reading, Writing, And Radicalism: The Limits On Government Control Over Private Schooling In An Age Of Terrorism., Avigael N. Cymrot
Reading, Writing, And Radicalism: The Limits On Government Control Over Private Schooling In An Age Of Terrorism., Avigael N. Cymrot
St. Mary's Law Journal
There are constitutional limitations that govern attempts to regulate the teaching of terrorism-encouraging ideologies. According to a 1999-2000 study by the National Center of Education Statistics, there are 152 full-time Islamic schools in the United States, schooling about 19,000 students. The primary concern is not that children will be instructed to immediately engage in terrorist acts, but that the teaching of a radical Islamist ideology will predispose them to join radical Islamist terrorist movements and engage in violence. The Free Exercise Clause and parental rights doctrine, however, might not by themselves bar the state from interfering in private education to …
Accommodating Religion And Law In The Twenty-First Century, Andrew J. King
Accommodating Religion And Law In The Twenty-First Century, Andrew J. King
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.
Religion In Public Schools: Let Us Pray - Or Not., Carolyn Hanahan, David M. Feldman
Religion In Public Schools: Let Us Pray - Or Not., Carolyn Hanahan, David M. Feldman
St. Mary's Law Journal
This Essay addresses judicial interpretation and application of the religious protections of students in public schools. Part II addresses the evolution of the law governing prayer in public schools, including the creation of judicial tests utilized in determining whether a school district has impeded the rights of students in the area of religion. Part III examines the application of these tests to various activities, including a discussion of the disparity in judicial interpretation with respect to the permissibility of prayer at public school functions. This Essay concludes with a discussion analyzing the effect of the recent United States Supreme Court …
A Holy Mess: School Prayer, The Religious Freedom Restoration Act Of Texas, And The First Amendment., David S. Stolle
A Holy Mess: School Prayer, The Religious Freedom Restoration Act Of Texas, And The First Amendment., David S. Stolle
St. Mary's Law Journal
In Employment Division, Department of Human Resources of Oregon v. Smith, the U.S. Supreme Court held the traditional compelling state interest standard for Free Exercise Clause jurisprudence should be replaced by a new test requiring a statute or government action to be facially neutral and generally applicable. In response to Smith, Congress, relying on its Enforcement Clause powers under the Fourteenth Amendment, attempted to resurrect the compelling state interest standard by passing the Religious Freedom of Restoration Act (RFRA). In June 1999, the Texas legislature passed the Texas Religious Freedom Restoration Act (TRFRA). This Comment argues the TRFRA is unnecessary …
Balancing Cultural Integrity Against Individual Liberty: Civil Court Review Of Ecclesiastical Judgments, Michael G. Weisberg
Balancing Cultural Integrity Against Individual Liberty: Civil Court Review Of Ecclesiastical Judgments, Michael G. Weisberg
University of Michigan Journal of Law Reform
This Note considers the standard of deference that civil courts should apply in cases where a religious judicatory already has decided an issue which subsequently is submitted for civil court resolution. It proposes a framework designed to protect the rights of religious groups to preserve their cultural integrity while also protecting individuals' personal liberty and the interests of the secular state. The analysis is necessarily framed by the opposing demands of the First Amendment's religion clauses. The Free Exercise Clause prohibits civil courts from intruding into religious societies' internal affairs, and the Establishment Clause limits religious authority over secular issues. …
God Is Dead: Killed By Fifty Years Of Establishment Clause Jurisprudence., Raul M. Rodriguez
God Is Dead: Killed By Fifty Years Of Establishment Clause Jurisprudence., Raul M. Rodriguez
St. Mary's Law Journal
In 1980, the Supreme Court in Stone v. Graham addressed the issue of whether a statute requiring the display of the Ten Commandments in all public school classrooms was an unconstitutional establishment of religion. Applying the Lemon test the Court found the statute’s purpose to be religious and ruled it unconstitutional. Yet, had the state required the placement of the following “secular commandments” in every classroom, it is unlikely the Court would have found an Establishment Clause violation. Stone illustrates what the Supreme Court’s Establishment Clause jurisprudence has become. The Court has misconstrued the meaning of the “establishment of religion” …