Law Commons^™

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 …

Analysis Of Carson V. Makin, Wilson Huhn

Law Faculty Publications

Many school districts in the State of Maine lack high schools, so the children in those districts must attend another school selected by their parents. In 1873 the State of Maine enacted a tuition assistance program that offers a stipend to participating schools to partially defray the cost of educating children from districts that lack a high school. In 1981 the State of Maine enacted a law that categorically excludes sectarian schools’ from participating in the tuition assistance program.

Three sets of parents sued the Commissioner of the Maine Department of Education, asserting that the exclusion of sectarian schools, from …

A More Capacious Concept Of Church, Philip Hackney, Samuel D. Brunson

Articles

United States tax law provides churches with extra benefits and robust protection from IRS enforcement actions. Churches and religious organizations are automatically exempt from the income tax without needing to apply to be so recognized and without needing to file a tax return. Beyond that, churches are protected from audit by stringent procedures. There are good reasons to consider providing a distance between church and state, including the state tax authority. In many instances, Congress granted churches preferential tax treatment to try to avoid excess entanglement between church and state, though that preferential treatment often just shifts the locus of …

Religious Tolerance And Anti-Trinitarianism: The Influence Of Socinianism On English And American Leaders And The Separation Of Church And State, Keeley Harris

Honors Theses

This research focuses on a sect of Christian thinkers who originated in mid-16th century Poland called Socinians. They had radical Christian views built upon ideas from humanism and the Protestant Reformation, including Anti-Trinitarianism and rejecting the divinity of Christ. Most importantly, they believed that in order to follow Christ’s message, separation of church and state and religious toleration were necessary. Socinianism spread across Europe into England, first permeating subtly while England remained intolerant, but it came to the forefront during the English Civil War. Socinian ideas helped further political agendas of Royalists and ultimately influenced Enlightenment thinkers like John Locke …

Analyzing The Fiscal Relationship Between The Church And State, Emily Lethbridge

Senior Honors Theses

The relationship between the government and the church is frequently debated in the United States. One main concern is the legality of the government granting funding to churches, religious schools, and Christian organizations. Religious institutions are separated from the government; thus, they can be tax-exempt and able to discriminate on a religious basis. The Supreme Court has analyzed the Free Exercise and Establishment Clauses in several cases to determine when the government may grant funds to religious institutions. In the past decade, administrative code and judicial case law have both expanded religious institutions’ ability to receive governmental funds. Inevitably, controversy …

Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin

Michigan Law Review Online

Trinity Lutheran Church, Inc. v. Comer is a significant setback for a strong separation of church and state. Missouri denied a playground grant to Trinity Lutheran because of a state constitutional provision that bans financial aid to churches. The church sued. The Supreme Court held not only that the Establishment Clause allowed the government to give taxpayer money to Trinity Lutheran, but that the Free Exercise Clause required it. The decision's many flaws are not the focus of this short Essay. Instead, this Essay dissects the Supreme Court's reasoning in order to apply it to current controversies in related areas …

The Tension Between Equal Protection And Religious Freedom, John M. Greabe

Law Faculty Scholarship

[Excerpt] "The Constitution did not become our basic law at a single point in time. We ratified its first seven articles in 1788 but have since amended it 27 times. Many of these amendments memorialize fundamental shifts in values. Thus, it should come as no surprise to learn that the Constitution is not an internally consistent document."

…

"Other constitutional provisions -- even provisions that were simultaneously enacted -- protect freedoms that can come into conflict with one another. The First Amendment, for example, promises both freedom from governmental endorsement of religion and freedom from governmental interference with religious practice. …

Law, Religion, And Politics: Understanding The Separation Of Church And State, Richard Garnett

Richard W Garnett

Professor Richard Garnett, of University of Notre Dame Law School, presented on the topic Law, Religion, and Politics: Understanding the Separation of Church and State. This workshop was presented as part of the Hesburgh Lecture Series through the Alumni & Friends of University of Notre Dame and was co-sponsored by the Notre Dame Alumni Club of Miami. This workshop examined how to understand the Constitution's "separation of church and state" and what it requires of religious believers and institutions.

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 …

Thou Shalt Not Electioneer: Religious Nonprofit Political Activity And The Threat “God Pacs” Pose To Democracy And Religion, Jonathan Backer

Michigan Law Review

The Supreme Court’s 2010 decision in Citizens United v. FEC invalidated a longstanding restriction on corporate and union campaign spending in federal elections, freeing entities with diverse political goals to spend unlimited amounts supporting candidates for federal office. Houses of worship and other religious nonprofits, however, remain strictly prohibited from engaging in partisan political activity as a condition of tax-exempt status under Internal Revenue Code § 501(c)(3). Absent this “electioneering prohibition,” religious nonprofits would be very attractive vehicles for political activity. These 501(c)(3) organizations can attract donors with the incentive of tax deductions for contributions. Moreover, houses of worship need …

Law, Religion, And Politics: Understanding The Separation Of Church And State, Richard Garnett

Faculty Workshops

Professor Richard Garnett, of University of Notre Dame Law School, presented on the topic Law, Religion, and Politics: Understanding the Separation of Church and State. This workshop was presented as part of the Hesburgh Lecture Series through the Alumni & Friends of University of Notre Dame and was co-sponsored by the Notre Dame Alumni Club of Miami. This workshop examined how to understand the Constitution's "separation of church and state" and what it requires of religious believers and institutions.

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

Michael Heise

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 …

Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett

Richard W Garnett

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

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 …

Forum Juridicum: Church Autonomy In The Constitutional Order - The End Of Church And State?, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

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 …

Symposium Introduction: The Competing Claims Of Law And Religion: Who Should Influence Whom? , Robert F. Cochran Jr., Michael A. Helfand

Michael A Helfand

No abstract provided.

Symposium Introduction: The Competing Claims Of Law And Religion: Who Should Influence Whom? , Robert F. Cochran Jr., Michael A. Helfand

Pepperdine Law Review

No abstract provided.

Unwanted Exposure To Religious Expression By Government: Standing And The Establishment Clause, Carl H. Esbeck

Faculty Publications

For nearly half a century the Supreme Court has relaxed traditional standards of justiciability and permitted taxpayer standing when a claimant has invoked the Establishment Clause in a lawsuit to prohibit government funding of religion. The Court has recently cutback, however, permitting taxpayer standing only when a tax is extracted from the claimant and money is appropriated by a legislature to fund a statutory program that directs the use of public aid for religion.

When Fear Rules In Law’S Place: Pseudonymous Litigation As A Response To Systematic Intimidation, Benjamin P. Edwards

Scholarly Works

When reprisals and intimidation make certain types of cases too risky for most plaintiffs to file, courts should preserve access to justice by allowing more plaintiffs to proceed pseudonymously. As it stands, courts may be deciding requests to proceed under a pseudonym without understanding the full scope of possible retaliation risks, including that past retaliation may work continuing harm through the stress created by fear.

Unusually heightened retaliation risks may be best exemplified by the nasty reprisals befalling plaintiffs in separation of church and state cases. Although multiple books addressed the issue in the mid-90s, the violent trend has continued …

True Lies: Canossa As Myth, Frederick Mark Gedicks

Faculty Scholarship

This essay is a response to Paul Horwitz, “Freedom of the Church without Romance,” published as part of a symposium on “The Freedom of the Church.” The essay endorses Horwitz’s central thesis that advocates of a contemporary “freedom of the Church” have overlooked historical complexities in marking the 11th-century investiture conflict between Henry IV and Pope Gregory VII, often simply referred to “Canossa” after the small Emilian village where Henry sought absolution from Gregory, as the birth of that freedom.

The essay goes beyond Horwitz to argue that the historical account of “Canossa” presupposed by freedom-of-the-Church advocates is literally false. …

Madison 1, Bush 0: Survey Testing Mr. Madison's Hypotheses, Daniel Gordon

Touro Law Review

For over fifty years, James Madison warned the American colonies and the new United States of America of the dangers of linking religion with government. Madison fought in his home state of Virginia to separate church and state and continued the fight as a congressman and as president. Between 2001 and 2009, President George W. Bush overtly linked religion with government. President Bush's efforts provide the opportunity to test President Madison's hypothesis that danger arises in American society when religion and government are linked. The Gallup Organization in its public opinion testing provides the means used in this Article to …

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 …

Saving The Preachers The Tax Code's Prohibition On Church Electioneering, Nicholas P. Cafardi

Nicholas P. Cafardi

Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett

Faculty Publications

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

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

Journal Articles

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 …

Establishing Inequality, Gene R. Nichol

Michigan Law Review

Part I outlines Nussbaum's thesis and her similarly interesting, if perhaps not always completely consistent, applications of it. Part II touches on some challenges and potential shortcomings her theory presents-for clearly there are such. But, in Part III, I argue that her wide-ranging study of the work of the religion clauses nonetheless touches something residing at the core of American citizenship. No bosses. No masters. No insiders. None outcast. Finally, and far more idiosyncratically, in Part IV I explore and expand on Nussbaum's thesis in light of a modestly serious and rather public dispute over religious equality that occurred at …

Theology In Public Reason And Legal Discourse: A Case For The Preferential Option For The Poor, Russell Powell

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Free To Believe, Richard Garnett

Journal Articles

Richard Garnett reviews Religious Freedom and the Constitution by Christopher L. Eisgruber & Lawrence G. Sager, Harvard University Press, 352 pages, $28.95

Drop Coffers, Richard W. Garnett, Benjamin P. Carr

Journal Articles

”Coffers.” When we hear or read the word, what do we picture? Buried treasure on the Isle of Monte Cristo? The dragon Smaug’s stolen riches, piled deep under the Lonely Mountain? Maybe we dimly remember a line of Shakespeare or Chaucer. If one is male and of a certain age, the word might bring to the surface suppressed memories of the all-nighters and arcana associated with Dungeons & Dragons. And, if one is a justice of the Supreme Court of the United States, one’s thoughts might turn to the checking account of St. Jerome Catholic School in Cleveland.