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Full-Text Articles in Law
Who Let The Ghouls Out? The History And Tradition Test’S Embrace Of Neutrality And Pluralism In Establishment Cases, Jake S. Neill
Who Let The Ghouls Out? The History And Tradition Test’S Embrace Of Neutrality And Pluralism In Establishment Cases, Jake S. Neill
Pepperdine Law Review
In June of 2022, the Supreme Court decided in Kennedy v. Bremerton School District that an Establishment Clause inquiry “focused on original meaning and history” would replace Lemon’s endorsement test. But after announcing the test, the Court neglected to describe or apply it. This Comment attempts to fill that void. After analyzing the Court’s Establishment Clause jurisprudence, this Comment proposes tenets of the history and tradition test and applies those tenets to Allegheny County v. ACLU, a case decided under Lemon. Finally, this Comment concludes by arguing that the history and tradition inquiry supports pluralism, humility, tolerance, and a healthy …
Inviting An Impermissible Inquiry? Rfra’S Substantial-Burden Requirement And “Centrality”, D. Bowie Duncan
Inviting An Impermissible Inquiry? Rfra’S Substantial-Burden Requirement And “Centrality”, D. Bowie Duncan
Pepperdine Law Review
The Religious Freedom Restoration Act (RFRA) prohibits the federal government from substan-tially burdening a person’s religious exercise unless the government can satisfy strict scrutiny. The statute also defines religious exercise to prohibit courts from inquiring into how central a particular religious exercise is to a person’s religion. “The term ‘religious exercise,’” reads the relevant provision, “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Despite this prohibition on centrality inquiries, some scholars argue that RFRA’s substantial-burden element requires courts to consider the religious costs a law imposes on a religious adherent …
Contracts And The Constitution In Conflict: Why Judicial Deference To Religious Upbringing Clauses Infringes On The First Amendment, Elica Zadeh
Pepperdine Law Review
When a Hasidic person files for divorce under New York law, either party to the marriage may invoke a declaratory judgment action to establish certain rights in a settlement agreement. If children are involved, such an agreement may include a religious upbringing clause, dictating that the child is to be raised in accordance with their then-existing religion—Hasidism. Deviation from the contract risks removal from the aberrant parent who intentionally or unwittingly allows the child to wane into secularism. Although the child’s best interest is the cornerstone of custodial analysis, a problem emerges when his or her best interest is couched …
In God We Trust (Unless We Change Our Mind): How State Of Mind Relates To Religious Arbitration, Skylar Reese Croy
In God We Trust (Unless We Change Our Mind): How State Of Mind Relates To Religious Arbitration, Skylar Reese Croy
Pepperdine Dispute Resolution Law Journal
Arguably, binding religious arbitration agreements are constitutionally problematic because they hinder freedom of religion: They inhibit parties’ ability to change their beliefs. However, religious arbitration agreements also offer an outlet for the religiously inclined to further practice their beliefs. This Article offers a middle ground: If a party to a religious arbitration agreement changes religion, he or she can claim a “conscientious objector” status if he or she can prove the agreement violates his or her sincerely held religious beliefs. Courts are allowed to inquire into the sincerity of a person’s religious beliefs. The religious question doctrine — which restricts …
Words Of Wisdom From The Founding Fathers: Why The Internal Revenue Service Should Let Churches Be, Sophia Benavides
Words Of Wisdom From The Founding Fathers: Why The Internal Revenue Service Should Let Churches Be, Sophia Benavides
Journal of the National Association of Administrative Law Judiciary
Part I of this comment will explore the foundations of the First Amendment, as the Constitution is a framework on which the United States continues to rest. An examination of the events contributing and leading to the drafting of the Constitution will illuminate the rationale behind the tenets put forth by the Founding Fathers. More specifically, this comment will devote emphasis to the Founding Fathers’ objectives regarding the state in relation to religion. This emphasis will provide insight into the perspective of the Founders at the time of drafting the First Amendment. Furthermore, this section will illustrate how the separation …
“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty
“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty
Pepperdine Law Review
At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of Sharī’ah law. They hope to join the seven states that have ostensibly banned it to date. Anti-Sharī’ah advocates have cited a number of cases to back their tenuous claim that Sharī’ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis. There is no creeping …
Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin
Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin
Pepperdine Law Review
The article focuses on role of the U.S. courts in confronting religious laws in dispute resolution of various cases of domestic relations, contracts, and torts. Topics discussed include role of secular courts in maintaining constitutional balance between the free exercise and establishment clauses, constitutional challenges faced by religious adherents, and importance of legal pluralism in the U.S.
Rethinking The “Religious-Question” Doctrine, Christopher C. Lund
Rethinking The “Religious-Question” Doctrine, Christopher C. Lund
Pepperdine Law Review
The “religious question” doctrine is a well-known and commonly accepted notion about the First Amendment’s Religion Clauses. The general idea is that, in our system of separated church and state, courts do not decide religious questions. And from this premise, many things flow — including the idea that courts must dismiss otherwise justiciable controversies when they would require courts to resolve religious questions. Yet a vexing thought arises. The religious-question doctrine traditionally comes out of a notion that secular courts cannot resolve metaphysical or theological issues. But when one looks at the cases that courts have been dismissing pursuant to …
Response: Situating Ourselves In History, Steven D. Smith
Response: Situating Ourselves In History, Steven D. Smith
Pepperdine Law Review
The author presents his views on history of religious freedom incorporated in his Brandeis lecture and in the book "The Rise and Decline of American Religious Freedom." Topics discussed include hegemonic status of special protection to religious freedom for legal academics, role of ending religious freedom in providing protection to religious actors under other constitutional provisions like free speech, and impact of ending religious freedom on other freedom like freedom of association.
The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe
The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe
Pepperdine Law Review
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.
Theorists, Get Over Yourselves: A Response To Steven D. Smith, Andrew Koppelman
Theorists, Get Over Yourselves: A Response To Steven D. Smith, Andrew Koppelman
Pepperdine Law Review
In this article, the author presents his views in response to the article The Last Chapter? by critic of contemporary liberal theory Steven D. Smith in reference to his book "Defending American Religious Neutrality." Topics discussed include the political aspects associated with religious freedom, role of secularism in eroding religious freedom, and conflicts between religion and modern secular egalitarianism.
More “Vitiating Paradoxes”: A Response To Steven D. Smith, Paul Horwitz
More “Vitiating Paradoxes”: A Response To Steven D. Smith, Paul Horwitz
Pepperdine Law Review
In this article, the author presents his views in response to the article The Last Chapter? by critic Steven D. Smith. Topics discussed include importance of critical legal studies (CLS) theory in reflecting political aspects of religious freedom, views of Smith in his book "The Rise and Decline of American Religious Freedom," and the relationship of egalitarianism with religious freedom.
The Last Chapter?, Steven D. Smith
The Last Chapter?, Steven D. Smith
Pepperdine Law Review
An essay is presented in which the author presents contrasting views of law professors at Stanford and Harvard University, Michael McConnell and Noah Feldman respectively on religious freedom. Topics discussed include requirement of special protection to religious freedom, protection of religious belief and expression under other constitutional provisions such as freedom of speech, and the failure of Obama Administration in providing special freedom of association to religious associations.
Once We Were Slaves, Now We Are Free: Legal, Administrative, And Social Issues Raised By Passover Celebrations In Prison, Aviva Orenstein
Once We Were Slaves, Now We Are Free: Legal, Administrative, And Social Issues Raised By Passover Celebrations In Prison, Aviva Orenstein
Pepperdine Law Review
“Once we were slaves, now we are free” is a central line from the Jewish Passover Seder, a ritual meal in which participants retell the story of liberation from Pharaoh’s oppression. In prison, many Jewish inmates request access to a Seder and to kosher-for-Passover food for the eight-day holiday. Prisoners’ requests to celebrate Passover provide a rich example for exploring the Religious Land Use and Institutional Persons Act (RLUIPA), and raise a host of tough questions regarding cost, safety, equal treatment of prisoners, and establishment of religion. Because kosher-for-Passover meals are more expensive and generally of higher quality than regular …
Heffron V. International Society For Krishna Consciousness Inc.: A Restrictive Constitutional View Of The Proselytizing Rights Of Religious Organizations , Michael M. Greenburg
Heffron V. International Society For Krishna Consciousness Inc.: A Restrictive Constitutional View Of The Proselytizing Rights Of Religious Organizations , Michael M. Greenburg
Pepperdine Law Review
The persistent efforts of religious organizations to reach their public have consistently been met with governmental limitation due to the often conflicting interests of public order, and free speech and expression. Heffron v. International Society for Krishna Consciousness, Inc. represents the Court's latest redefinition of the extent of permissible limitations upon the activities of these groups. The author examines the decision in light of the traditional criteria for permissible time, place, and manner restrictions upon free speech and evaluates the Court's implementation of these restrictions with respect to the activities of the Krishna group. The impact of the decision upon …
A New Standard Of Review In Free Exercise Cases: Thomas V. Review Board Of The Indiana Employment & Security Division, Lynn Mccutchen Gardner
A New Standard Of Review In Free Exercise Cases: Thomas V. Review Board Of The Indiana Employment & Security Division, Lynn Mccutchen Gardner
Pepperdine Law Review
In Thomas v. Review Board of the Indiana Employment Security Division, the United States Supreme Court was called upon to clarify the appropriate level of review to be applied in cases which examine the first amendment right to free exercise of religion. The Court ruled that the "compelling state interest" test is the proper standard to be used. The Court also accorded first amendment protection to beliefs which are not shared by other members of a religious group and which are instead the unique interpretation of an individual member and not acceptable, logical, consistent or comprehensible to others.
The Constitutional Issues Surrounding The Science-Religion Conflict In Public Schools: The Anti-Evolution Controversy, Michael M. Greenburg
The Constitutional Issues Surrounding The Science-Religion Conflict In Public Schools: The Anti-Evolution Controversy, Michael M. Greenburg
Pepperdine Law Review
Since the infamous Scopes trial the matter of the constitutional validity of the "anti-evolution" laws has plagued both legal scholars and school administrators. The courts have generally invalidated legislation which bans outright the teaching of evolution in public schools, but with the advent of the "balanced treatment" acts, a revival of this litigation has begun. The author examines the constitutional analysis utilized by the courts in dealing with the "anti-evolution" and "balanced treatment" acts and provides an historical perspective of the first amendment to question the Court's response to the issue.
Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney
Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney
Pepperdine Law Review
Justice Hugo L. Black served on the United States Supreme Court over a period of thirty-four years, encompassing Supreme Court terms from 1937 to 1971. During this period, the subject of the constitutional limitations of the freedom of religion was increasingly subjected to intense social pressures. Justice Black figured prominently in the development of constitutional law as the Supreme Court attempted to give meaning to the establishment and free exercise clause of the first amendment. He wrote the majority opinions which dealt with the establishment clause in the Everson, McCulloin, Engel and Torcaso cases. Yet, on later occasions, Justice Black …
Marsh V. Chambers: The Supreme Court Takes A New Look At The Establishment Clause, Diane L. Walker
Marsh V. Chambers: The Supreme Court Takes A New Look At The Establishment Clause, Diane L. Walker
Pepperdine Law Review
No abstract provided.
Some Observations On The Establishment Clause, William French Smith
Some Observations On The Establishment Clause, William French Smith
Pepperdine Law Review
As evidenced by current interpretations of the establishment clause, lower federal court decisions indicate an increased tendency of hostility toward religion. In this article, Attorney General William French Smith surveys the history of the establishment clause and Supreme Court decisions regarding religious issues. Attorney General Smith then notes the recent success of the Reagan Administration's efforts, through amicus curiae briefs, to advocate an interpretation of the establishment clause which permits the states to take an attitude of benevolent neutrality toward religion. The article then concludes that such a position is both historically and judicially sound.
Public Policy Against Religion: Doubting Thomas , Richard H. Seeburger
Public Policy Against Religion: Doubting Thomas , Richard H. Seeburger
Pepperdine Law Review
In free exercise cases, the Supreme Court has adopted a least restrictive alternative test in an attempt to maximize protection for religiously motivated practices. Because the least restrictive alternative test only considers the importance of the governmental interest and the availability of alternative means to accomplish those interests, thereby ignoring the importance of the burdened religious activity to the individual and the degree of burden on religious activity, all religious interests are treated equally when asserted against a governmental interest. Under such an inflexible and brittle test, the Supreme Court has recently denied religious claims which had previously been recognized. …
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 …
Blame It On Catholic Bishop: The Question Of Nlrb Jurisdiction Over Religious Colleges And Universities, Susan J. Stabile
Blame It On Catholic Bishop: The Question Of Nlrb Jurisdiction Over Religious Colleges And Universities, Susan J. Stabile
Pepperdine Law Review
No abstract provided.
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.
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 …
Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment , Paul A. Monopoli
Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment , Paul A. Monopoli
Pepperdine Law Review
No abstract provided.
Government's Denigration Of Religion: Is God The Victim Of Discrimination In Our Public Schools?, Michael R. O'Neill
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
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
Substance And Method In The Year 2000, Akhil Reed Amar
Pepperdine Law Review
No abstract provided.