Law Commons^™

The Primacy Of Political Actors In Accommodation Of Religion, William K. Kelley

William K. Kelley

This article focuses on the relationship between freedom of religion and the norm against non-establishment of religion in the context of government efforts to accommodate religious practices. It analyzes First Amendment doctrine in this area, and concludes that the Supreme Court has consistently been generous in permitting accommodations of religion when they are the product of judicial decisions; in other words, at least until recently the Court has been open to mandatory accommodations so long as they are ordered by judges. By contrast, the Court has long been suspicious of - and far from generous in permitting - accommodations as …

Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett

Richard W Garnett

What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if …

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

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 …

Judicial Enforcement Of The Establishment Clause, Richard W. Garnett

Richard W Garnett

This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Richard W Garnett

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law …

Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett

Richard W Garnett

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand church-state separation? …

Church, State, And The Practice Of Love, Richard W. Garnett

Richard W Garnett

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.

The specific goal for this paper is to draw from Deus caritas est some insight into …

Religions As Sovereigns: Why Religion Is "Special", Elizabeth A. Clark

Elizabeth A. Clark

Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia And Central Asia, Elizabeth A. Clark

Elizabeth A. Clark

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Susan Rexford

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is its role …