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Articles 1 - 29 of 29
Full-Text Articles in Law
Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins
Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins
Neal E. Devins
No abstract provided.
Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin
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 …
Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea
Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea
Michigan Law Review
A review of Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century.
Memorandum, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Memorandum, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Research Data
This legal Memorandum on the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and written by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The Memorandum is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).
4 p.
"The legislative history primarily identifies two issues that SB08-200 was designed to resolve: (1) the need for dignity and access to justice for LGBT people and …
Master File, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Master File, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Research Data
This Master File of the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and compiled by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The SB08-200 Master File is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).
449 p.
Putting Faith In Europe: Should The U.S. Supreme Court Learn From The European Court Of Human Rights?, Antony Barone Kolenc
Putting Faith In Europe: Should The U.S. Supreme Court Learn From The European Court Of Human Rights?, Antony Barone Kolenc
Georgia Journal of International & Comparative Law
No abstract provided.
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.
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.
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. …
Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine
Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine
Michigan Journal of Race and Law
Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of general …
If It Is Broken, Then Fix It: Needed Reforms To Employment Discrimination Law: 2009 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Melissa Hart, Minna Kotkin, Roberto Corrada, Deborah Widiss
If It Is Broken, Then Fix It: Needed Reforms To Employment Discrimination Law: 2009 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Melissa Hart, Minna Kotkin, Roberto Corrada, Deborah Widiss
Publications
No abstract provided.
Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill
Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill
Michigan Law Review
The treatment of Establishment Clause challenges to displays of religious symbolism by the Supreme Court and the lower courts is notoriously unpredictable: a crèche is constitutionally acceptable if it is accompanied by a Santa Claus house and reindeer, a Christmas tree, and various circus figures, but unacceptable if it is accompanied by poinsettias, a "peace tree," or a wreath, a tree, and a plastic Santa Claus. A menorah may be displayed next to a Christmas tree, or next to Kwanzaa symbols, Santa Claus, and Frosty the Snowman, but not next to a crèche and a Christmas tree. A number of …
The Free Exercise Of Religion And Public Schools: The Implications Of Hybrid Rights On The Religious Upbringing Of Children, Michael E. Lechliter
The Free Exercise Of Religion And Public Schools: The Implications Of Hybrid Rights On The Religious Upbringing Of Children, Michael E. Lechliter
Michigan Law Review
This Note argues that parents have a fundamental right under the U.S. Constitution to direct the religious upbringing of their children and that courts interpreting Smith have systematically misunderstood and misapplied the Supreme Court's confusing hybrid rights language. Part I explains how Yoder and Smith create and preserve parents' right to direct the religious upbringing of their children. The essential point is that the free exercise right and the parental right are not examined independently and simply added together, but instead are incorporated together to provide a specific bite to the free exercise claim. Part I also examines the lower …
Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill
Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill
Faculty Publications
The Supreme Court's jurisprudence concerning public displays of religious symbols is notoriously unpredictable. In this Article, Professor Hill argues that the instability and apparent incoherence of the Supreme Court's religious symbolism jurisprudence is due to certain difficulties inherent in discerning the "meaning" or "message" of a religious display. In particular, she attributes the unpredictability of the jurisprudence to the fact that the meaning of the display is dependent on the "context," which is itself an unmanageable and unformalizable concept. This Article, which draws on insights from literary and linguistic theory, breaks with previous commentators' claims that the difficulties with the …
Section 1: Moot Court, Locke V. Davey, Institute Of Bill Of Rights Law, William & Mary Law School
Section 1: Moot Court, Locke V. Davey, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Who Speaks For The State?: Religious Speakers On Government Platforms And The Role Of Disclaiming Endorsement, Steven H. Aden
Who Speaks For The State?: Religious Speakers On Government Platforms And The Role Of Disclaiming Endorsement, Steven H. Aden
William & Mary Bill of Rights Journal
The recent Supreme Court decision in Santa Fe Independent School District v. Doe prohibits prayer at school-sponsored events. In this Article the author analyzes the development of Supreme Court jurisprudence in the area of religion in public schools. Noting the tension between the Establishment and Free Speech Clauses, the author proposes the use of disclaimers to allow student expression at school events to avoid violating the Establishment Clause.
A Response To Professor Rubenfeld, Jonathan D. Hacker
A Response To Professor Rubenfeld, Jonathan D. Hacker
Michigan Law Review
Professor Jed Rubenfeld has offered in these pages an ingenious explanation for why the Supreme Court was right to strike down the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores. Rubenfeld finds in the First Amendment's Establishment Clause a historical and inherent principle he calls "antidisestablishmentarianism": a prohibition on acts of Congress that "disestablish" religion in the several states. Rubenfeld reads the Establishment Clause as proscribing not only congressional acts that "establish" religion but also all congressional acts that "dictate a position on religion for states," including laws designed to ensure that states abide by the requirements …
Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld
Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld
Michigan Law Review
To get right to the point: Mr. Hacker does not disagree that the Establishment Clause would, in the absence of the Fourteenth Amendment, have prohibited Congress from passing a nationwide religion law like RFRA. He believes, however, that the Fourteenth Amendment has in part repealed the First. Of course, he doesn't want to say repealed. The language of repeal is not pleasant to the ears of those who would like to forget about First Amendment antidisestablishmentarianism. The Fourteenth Amendment did not "repeal any aspect of the text of the [Establishment] Clause," Hacker says, but only "change[d] profoundly the meaning of …
Section 8: Freedom Of Religion, Institute Of Bill Of Rights Law, William & Mary Law School
Section 8: Freedom Of Religion, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Irreconcilable Differences? Divorcing Regugee Protections From Human Rights Norms, Karen Musalo
Irreconcilable Differences? Divorcing Regugee Protections From Human Rights Norms, Karen Musalo
Michigan Journal of International Law
This article will discuss in greater detail the profound defects of the Court's Zacarias decision. Section I will discuss the interpretation of key provisions of the 1980 Refugee Act, and describe the case of Jairo Elias Zacarias. Section II will review the plain language and legislative intent of the Act, including the congressional purpose of conforming to the 1967 Protocol. Section III will consider issues of burden of proof, and will examine the substantive impact which Zacarias has had on refugee cases. Section IV will focus on religious persecution as a paradigm of the inadequacy of an intent-based requirement and …
Section 4: Religion, Institute Of Bill Of Rights Law, William & Mary Law School
Section 4: Religion, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Structural Free Exercise, Mary Ann Glendon, Raul F. Yanes
Structural Free Exercise, Mary Ann Glendon, Raul F. Yanes
Michigan Law Review
In Part I of this article, we analyze the development of case law interpreting the religious freedom language of the First Amendment from the 1940s to the eve of the rights revolution as a casualty of the piecemeal approach to incorporation, compounded by a series of judicial lapses and oversights. Part II deals with the fate of the Religion Clause in the era of the rights revolution, when the free exercise and establishment provisions were deployed in the service of a constitutional agenda to which they were, in themselves, largely peripheral. The current period of doctrinal change is the subject …
A Judicial Postscript On The Church-State Debates Of 1989: How Porous The Wall, How Civil The State?, William W. Van Alstyne
A Judicial Postscript On The Church-State Debates Of 1989: How Porous The Wall, How Civil The State?, William W. Van Alstyne
Faculty Publications
This work is a continuation of the debate regarding the Establishment Clause. The focus lies with Justice O’Connor’s concurrence in County of Allegheny v. ACLU and how this opinion harkens back to a concept shared by Jefferson and Madison, that the establishment clause is designed to prevent government favoritism.
Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins
Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins
Faculty Publications
No abstract provided.
Religion And The Burger Court, Rex E. Lee
Religion And The Burger Court, Rex E. Lee
Michigan Law Review
A Review of Religion, State and the Burger Court by Leo Pfeffer
The Supreme Court, Compulsory Education, And The First Amendment's Religion Clauses, Philip B. Kurland
The Supreme Court, Compulsory Education, And The First Amendment's Religion Clauses, Philip B. Kurland
West Virginia Law Review
No abstract provided.
The Walz Decision: More On The Religion Clauses Of The First Amendment, Paul G. Kauper
The Walz Decision: More On The Religion Clauses Of The First Amendment, Paul G. Kauper
Michigan Law Review
The principal thrust of this Article is to determine the contribution made by the Walz decision to the body of ideas that has been developed by the Court in its application of the interdependent free exercise and establishment limitations of the first amendment, to point up any distinctively new emphases, and to suggest the implications of these new ideas and emphases for important cases coming before the Court at its 1970-1971 term.
The Warren Court: Religious Liberty And Church-State Relations, Paul G. Kauper
The Warren Court: Religious Liberty And Church-State Relations, Paul G. Kauper
Michigan Law Review
The purpose of this Article is to analyze the holdings of the Warren Court under these two clauses in an attempt to assess their significance by reference both to earlier interpretations and to the direction they may give to future development.