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University of Missouri School of Law

Free exercise

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Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck Oct 2012

Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck

Faculty Publications

While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech …


Role Of Individuals Discrimination In Free Exercise Claims: Putting Iqbal In Its Place, The, Leila Mcneill Jun 2010

Role Of Individuals Discrimination In Free Exercise Claims: Putting Iqbal In Its Place, The, Leila Mcneill

Missouri Law Review

Ashcroft v. Iqbal has been widely discussed for three reasons: (1) its extension of Twombly's pleading standard to cases outside the realm of antitrust suits, (2) its application of the collateral order doctrine to a district court order denying an official's motion to dismiss on the basis of qualified immunity in a Bivens claim, and (3) its implication for national security and postSeptember 11th terrorist detainments and investigations. However, Iqbal also implicates the nature of what constitutes unconstitutional religious discrimination under the First Amendment's Free Exercise Clause. Therefore, the Iqbal Court's discussion of religious liberty will present problems of interpretation …


Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck Jul 2000

Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck

Faculty Publications

The purpose of the Establishment Clause is not to safeguard individual religious rights. That is the role of the Free Exercise Clause, indeed its singular role. The purpose of the Establishment Clause, rather, is as a structural restraint on governmental power. Because of its structural character, the task of the Establishment Clause is to limit government from legislating or otherwise acting on any matter "respecting an establishment of religion." The powers that fall within the scope of the foregoing clause (denied to government, hence within the sole province of religion) and the powers outside this clause (hence, authority vested in …