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Full-Text Articles in Law
The Serpentine Wall Of Separation, John Witte Jr.
The Serpentine Wall Of Separation, John Witte Jr.
Michigan Law Review
The task of separating the secular from the religious in education is one of magnitude, intricacy, and delicacy, Justice Jackson wrote, concurring in McCollum v. Board of Education, the Supreme Court's first religion in public schools case. "To lay down a sweeping constitutional doctrine" of absolute separation of church and state "is to decree a uniform . . . unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes." If we persist in this experiment, Justice Jackson warned his brethren, "we are …
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
Faculty Publications
This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters "respecting an establishment of religion." Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.
State Action Under The Religion Clauses: Neutral In Result Or Neutral In Treatment?, David K. Dewolf
State Action Under The Religion Clauses: Neutral In Result Or Neutral In Treatment?, David K. Dewolf
University of Richmond Law Review
The United States Supreme Court's treatment of the first amendment's religion clauses over the last fifty years has generated considerable controversy. While few religion clause cases reached the Supreme Court prior to 1940, the number steadily multiplied once the first amendment was incorporated into the fourteenth amendment. The Court's doctrinal development was incremental and uncertain, but by 1971 the Court had developed a test for each of the religion clauses to evaluate the constitutionality of challenged state action. Although these tests have not been followed with perfect fidelity, they have been the starting point for virtually all of the religion …
Boles: The Bible, Religion And The Public Schools, Arthur E. Sutherland
Boles: The Bible, Religion And The Public Schools, Arthur E. Sutherland
Michigan Law Review
A Review of The Bible, Religion and the Public Schools (3d ed) by Donald E. Boles
Prayer, Public Schools And The Supreme Court, Paul G. Kauper
Prayer, Public Schools And The Supreme Court, Paul G. Kauper
Michigan Law Review
A more complete understanding of the case, while doing much to temper the initial outburst of disapproval, did not by any means dispel all criticism of the decision or allay all the apprehensions aroused by it. Believing that the Supreme Court's opinion was premised on a fundamentally erroneous interpretation of the establishment clause of the first amendment, Bishop James A. Pike headed a movement to amend the Constitution so as to restore what he regarded as the true and intended meaning of its pertinent language. In the meantime, the Supreme Court has agreed to review and has heard argument on …
The EngelCase From A Swiss Perspective, F. William O'Brien
The EngelCase From A Swiss Perspective, F. William O'Brien
Michigan Law Review
On June 25, 1962, the Supreme Court of the United States held that the State of New York, by using its public school system to encourage recitation of a prayer during classroom hours, had adopted a practice wholly inconsistent with that clause of the first amendment, applicable to the states by virtue of the fourteenth amendment, which prohibits laws respecting an establishment of religion. The opinion of the Court, written by Mr. Justice Black for himself and four other Justices, is interesting in that he rests the Court's decision exclusively upon the establishment clause. In previous decisions, the Court had …
Constitutional Law - Separation Of Church And State - Bible Reading In The Public Schools, Henry B. Pearsall
Constitutional Law - Separation Of Church And State - Bible Reading In The Public Schools, Henry B. Pearsall
Michigan Law Review
Plaintiffs, as parents of children in the public school system, sought to enjoin and have declared unconstitutional the practice of reading aloud to students each day ten verses of the Holy Bible as required by a Pennsylvania statute. The plaintiffs contended that this practice constituted an establishment of religion and a prohibition of the free exercise thereof and was therefore a violation of rights guaranteed by the First Amendment to the United States Constitution. By a three-judge district court, held, for plaintiffs. The statute violated the United States Constitution because the Bible is essentially a religious book and the …
Released Time And Religious Liberty: A Further Reply, Paul G. Kauper
Released Time And Religious Liberty: A Further Reply, Paul G. Kauper
Michigan Law Review
In his "Reply" to the writer's review of his excellent book, Mr. Pfeffer has singled out the part of the review in which the writer discussed the released-time problem and the position taken by Mr. Pfeffer with respect thereto. To prolong the arguments over this matter in the pages of this Review would he unprofitable, hut the writer feels that a few comments on Mr. Pfeffer's reply would not he out of order.