Law Commons^™

Government's Denigration Of Religion: Is God The Victim Of Discrimination In Our Public Schools?, Michael R. O'Neill

Pepperdine Law Review

No abstract provided.

State Action And The Supreme Court's Emerging Consensus On The Line Between Establishment And Private Religious Expression, Michael W. Mcconnell

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

With Religious Liberty For All: A Defense Of The Affordable Care Act's Contraception Coverage Mandate, Frederick Mark Gedicks

Faculty Scholarship

The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One's religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs …

The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum

Ian C Bartrum

This paper explores the scope of independent religious sovereignty in the context of the ministerial exception.

The Genesis Of Rluipa And Federalism: Evaluating The Creation Of A Federal Statutory Right And Its Impact On Local Government, Patricia Salkin, Amy Lavine

Patricia E. Salkin

In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate …

Court Reform And Breathing Space Under The Establishment Clause, Mark C. Rahdert

Chicago-Kent Law Review

Flast v. Cohen held that federal taxpayers have standing to challenge government spending for religion. While Frothingham v. Mellon generally prohibits taxpayer standing in federal courts, the Court reasoned that the Establishment Clause specifically prohibits taxation in any amount to fund unconstitutional religious spending. For several decades Flast has been settled law that supplied jurisdiction in many leading establishment cases. But Hein v. Freedom from Religion Foundation, Inc. and Arizona Christian School Tuition Organization v. Winn signal that Flast may soon be overruled. This jurisdictional ferment raises two questions: Why this sudden shift? And what does it signify for the …

Toward A Meaning-Full Establishment Clause Neutrality, Bruce Ledewitz

Chicago-Kent Law Review

Some form of government neutrality toward religion, in contrast to a more pro-religion stance or a turn toward nonjusticiability, is the only interpretation of the Establishment Clause that can potentially lead to a national consensus concerning the proper role of religion in American public life. But to achieve that goal, neutrality theory must acknowledge and engage the need for the expressions of deep meaning on public occasions and in the public square generally. Current neutrality doctrine promotes a silent and empty public square. This article proposes an interpretation of neutrality that would allow a symbol-rich, meaning-full public square without violating …

Higher Law Secularism: Religious Symbols, Contested Secularisms, And The Limits Of The Establishment Clause, Zachary R. Calo

Chicago-Kent Law Review

There are two dominant traditions of understanding the secular, both with long genealogical resonance in western thought: Christian secularity and secularism. The former links the secular to a theological narrative, while the latter defines the secular as standing over and against religion. Constitutional debate has commonly framed the issue of religious symbols as demanding resolution in favor of one of these traditions. Rather than offering a way to overcome the divide and the culture war it generates, the Court's jurisprudence has instead concretized the binary. Only by cultivating a new understanding of the secular in law might there emerge an …

The Future Of The Establishment Clause In Context: A Response To Ledewitz, Christopher C. Lund

Chicago-Kent Law Review

No abstract provided.

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

Chicago-Kent Law Review

As a number of commentators have observed, the Supreme Court's record in adjudicating the free exercise claims of religious minorities—in particular, unfamiliar and unpopular religious minorities—is vulnerable to the critique that the Court's rhetoric and, at times, the Court's holdings demonstrate an inability or unwillingness to look beyond majoritarian religious perspectives. Building on this scholarship, this article analyzes the Court's adjudication of Establishment Clause cases in the context of different religious perspectives, including those of religious minorities, religious minorities, and nonbelievers.

In exploring these questions, this article traces the Court's Establishment Clause jurisprudence through several decades, examining a number of …

The Constitutional Politics Of The Establishment Clause, Richard Albert

Chicago-Kent Law Review

In these reflections presented at a Symposium hosted by Duquesne University School of Law on "The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?" I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court's recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts—national interdiction, congressional disability, and …

Ideology "All The Way Down"? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise

Michigan Law Review

As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in …

A Proposal To Expand The Religious Services Exemption Under The Copyright Act, Kevin M. Lemley

University of Arkansas at Little Rock Law Review

This article focuses on the religious services exemption to the Copyright Act. The religious services exemption is one of many exemptions that permit certain types of use without first obtaining permission from the copyright owner, or proving fair use. This article argues that the religious services exemption should be expanded to cover any work used in the course of services as well as the recording, broadcast, and transmission of the services.

The first part of this article analyzes the existing religious services exemption under the Copyright Act to define the bounds that uses fall under the exemption. The article then …

Selling Land And Religion, Eang L. Ngov

Faculty Scholarship

Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object. Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the …

Religion, School, And Judicial Decision Making: An Empirical Perspective, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service …