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Establishment Clause

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Establishment Clause Mythology, Peter J. Smith, Robert W. Tuttle Jan 2023

Establishment Clause Mythology, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

For 75 years, the Supreme Court’s opinions have reflected stark conflict between two competing narratives about the Establishment Clause’s meaning and legal foundation. One view holds that the Constitution requires a separation between church and state. The other view asserts that the government may promote religion. The former view—which we call separationism—is based on the framers’ understanding of the nature of civil government, and on a political theory of liberal pluralism. The latter view—which we call religionism—is usually grounded in tradition, and principally has its roots in the Second Great Awakening of the nineteenth century and its urge to transform …


Gordon College And The Future Of The Ministerial Exception, Peter J. Smith, Robert W. Tuttle Jan 2022

Gordon College And The Future Of The Ministerial Exception, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Gordon College v. DeWeese-Boyd, a social work professor at a religious college sued after she was denied promotion. The college asserted the “ministerial exception,” a judicially crafted and constitutionally grounded exception to the ordinary rules of liability arising out of the employment relationship between religious institutions and their ministers. Although the plaintiff had no distinctively religious duties, the college expected her (and all other faculty) to integrate the faith into her teaching and scholarship. The Massachusetts Supreme Judicial Court (SJC) held that this obligation, standing alone, was insufficient to qualify the plaintiff as a minister within the meaning of …


Foster Care And The Growing Tension Between The Religion Clauses: A Comment On Rogers V. Hhs, Robert W. Tuttle Jan 2021

Foster Care And The Growing Tension Between The Religion Clauses: A Comment On Rogers V. Hhs, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In 2018, the U.S. Department of Health & Human Services and the State of South Carolina agreed to waive their requirements of religious non-discrimination by state-funded, licensed child placement agencies. The state had discovered that its largest provider, Miracle Hill, approved the applications of only those who shared its Evangelical Protestant faith. Eden Rogers and Brandy Welch, a Unitarian, married same-sex couple, applied to Miracle Hill to be certified as foster parents. After Miracle Hill refused on religious grounds to assess the couple’s fitness, the couple filed suit against various federal and state defendants, alleging that the waivers constituted an …


The Cross At College: Accommodation And Acknowledgment Of Religion At Public Universities, Ira C. Lupu, Robert W. Tuttle Jan 2008

The Cross At College: Accommodation And Acknowledgment Of Religion At Public Universities, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In the fall of 2006, President Gene Nichol of the College of William & Mary decided that the college - a public institution - should no longer display a cross on the altar table of the college's Wren Chapel. He ordered the cross moved to a back room, from which it could be returned to the altar table during Christian worship. This decision sparked an outcry from many Christian conservatives, who asserted that President Nichol was undermining the college's historical legacy. After a period of campus furor, a special Committee proposed and the President accepted a compromise - the cross …


Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Robert W. Tuttle, Ira C. Lupu Jan 2007

Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Robert W. Tuttle, Ira C. Lupu

GW Law Faculty Publications & Other Works

This essay addresses the proliferation of constitutional issues involving the military chaplaincy. The authors query how the chaplaincy is consistent with the Establishment Clause of the Constitution's First Amendment and note that the answer generally derives from one or more of the following paradigms: (1) Establishment Clause history; (2) Public funding of religion; or (3) Governmental display of religious messages. They suggest that an adequate approach for Establishment Clause analysis of the military chaplaincy requires a different framework. To that end, Part I of this essay describes Katcoff v. Marsh, the most important decision on the constitutionality of the military …


A Constitutional Hierarchy Of Religions? Justice Scalia, The Ten Commandments, And The Future Of The Establishment Clause, Thomas Colby Jan 2006

A Constitutional Hierarchy Of Religions? Justice Scalia, The Ten Commandments, And The Future Of The Establishment Clause, Thomas Colby

GW Law Faculty Publications & Other Works

If there is one principle of Establishment Clause jurisprudence that has enjoyed the unanimous support of all of the Justices of the Supreme Court over the last half century, it is that all religions are afforded equal status under the Constitution. With his dissenting opinion in the 2005 Ten Commandments cases, however, Justice Scalia has upset that consensus. According to Justice Scalia's dissent, the Establishment Clause affords greater protection to the believers of some religions (Christianity, Judaism, Islam) than others (Hinduism, Buddhism, no religion, everything else). Turning traditional constitutional law on its head, Justice Scalia's approach treats the Establishment Clause …


Federalism And Faith, Ira C. Lupu, Robert W. Tuttle Jan 2006

Federalism And Faith, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion? In recent years, a number of commentators have been asserting that the Establishment Clause should not apply to the states. Justice Thomas has embraced this view, while offering his own refinements to it. Moreover, the Supreme Court's decision in Locke v. Davey (2004) ruled that a state did not run afoul of the Free Exercise Clause when it refused to subsidize religious studies, in a context in which the Establishment Clause would have permitted the subsidy.

This paper offers a focused (re)consideration …