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Full-Text Articles in Law
Religion And Social Coherentism, Nelson Tebbe
Religion And Social Coherentism, Nelson Tebbe
Cornell Law Faculty Publications
Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares …
Religion And Marriage Equality Statutes, Nelson Tebbe
Religion And Marriage Equality Statutes, Nelson Tebbe
Cornell Law Faculty Publications
To date, every state statute that has extended marriage equality to gay and lesbian couples has included accommodations for actors who oppose such marriages on religious grounds. Debate over those accommodations has occurred mostly between, on the one hand, people who urge broader religion protections and, on the other hand, those who support the types of accommodations that typically have appeared in existing statutes. This article argues that the debate should be widened to include arguments that the existing accommodations are normatively and constitutionally problematic. Even states that presumptively are most friendly to LGBT citizens, as measured by their demonstrated …
The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe
The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe
Cornell Law Faculty Publications
In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.
Government Nonendorsement, Nelson Tebbe
Government Nonendorsement, Nelson Tebbe
Cornell Law Faculty Publications
What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …
Nonbelievers, Nelson Tebbe
Nonbelievers, Nelson Tebbe
Cornell Law Faculty Publications
How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do. …
Smith In Theory And Practice, Nelson Tebbe
Smith In Theory And Practice, Nelson Tebbe
Cornell Law Faculty Publications
Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and …
Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe
Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe
Cornell Law Faculty Publications
Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself, but today a new cutting-edge issue is emerging: whether the Act’s extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should …
Privatizing And Publicizing Speech, Nelson Tebbe
Privatizing And Publicizing Speech, Nelson Tebbe
Cornell Law Faculty Publications
When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum, which the Supreme Court decided earlier this year, and Buono, which it will hear in the fall. In both cases, the government manipulated formal property rules in order to fend off constitutional challenges. In Summum, the government took ownership of a religious symbol in the face of a free speech challenge, while in Buono it shed ownership of land containing another sectarian symbol in an effort to moot an Establishment Clause problem. Although …
Excluding Religion, Nelson Tebbe
Excluding Religion, Nelson Tebbe
Cornell Law Faculty Publications
This Article considers whether government may single out religious actors and entities for exclusion from its support programs. The problem of selective exclusion has recently sparked interest in lower courts and in informal discussions among scholars, but the literature has not kept pace. Excluding Religion argues that government generally ought to be able to select religious actors and entities for omission from support without offending the Constitution. At the same time, the Article carefully circumscribes that power by delineating several limits. It concludes by drawing out some implications for the question of whether and how a constitutional democracy ought to …