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Articles 1 - 13 of 13
Full-Text Articles in Law
Review Essay: Charity For The Autonomous Self, Carl H. Esbeck
Review Essay: Charity For The Autonomous Self, Carl H. Esbeck
Faculty Publications
Review essay for "Charity Law and the Liberal State", by Matthew Harding and "Religion, Charity and Human Rights", by Kerry O'Halloran.
A Post-Obergefell America: Is A Season Of Legal And Civic Strife Inevitable?, Carl H. Esbeck
A Post-Obergefell America: Is A Season Of Legal And Civic Strife Inevitable?, Carl H. Esbeck
Faculty Publications
Obergefell v. Hodges did not extend the rigor of the Equal Protection Clause to "sexual orientation" as a protected class. The case is about the right to marry by obtaining a license from the state, not a right to be free of discrimination on the basis of sexual orientation. The Court's rhetoric, however, will boost officials eager to take the next step for sexual equality. Not only did Obergefell speak of gays and lesbians as a class and wrote empathetically about them, but in dicta twice said that being gay or lesbian is an immutable characteristic. Accordingly, it can be …
Third-Party Harms, Congressional Statutes Accommodating Religion, And The Establishment Clause, Carl H. Esbeck
Third-Party Harms, Congressional Statutes Accommodating Religion, And The Establishment Clause, Carl H. Esbeck
Faculty Publications
Those disappointed with the U.S. Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc. (2014), are actively seeking ways to otherwise limit the Religious Freedom Restoration Act (RFRA). Justice Ruth Bader Ginsburg, dissenting in Hobby Lobby, wrote that when a statute seeks to accommodate a claimant’s religious beliefs or practices there must be no detrimental effect on third parties who do not share those beliefs. Although it is unclear whether Justice Ginsburg was relying on the Establishment Clause as imposing this categorical restraint on the authority of Congress, some commentators argue that her thinking necessarily rests on that clause. …
Amendment 2 And Its Effect On Missourians' Free Exercise Of Religion, Mishelle Martinez
Amendment 2 And Its Effect On Missourians' Free Exercise Of Religion, Mishelle Martinez
Missouri Law Review
This Comment provides a thorough analysis of Amendment 2. The primary issue addressed is whether Amendment 2 will have an impact on Missourians' religious freedoms or whether Amendment 2 merely reaffirms rights already granted under the old article I, section 5 of the Missouri Constitution. If Amendment 2 does add new rights, an analysis of whether such rights are in accord with the First Amendment is required. Part II outlines the legislative history, text, and general commentary on the key provisions of Amendment 2. In Part III, all new provisions under Amendment 2 are analyzed in light of the legal …
Unwanted Exposure To Religious Expression By Government: Standing And The Establishment Clause, Carl H. Esbeck
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.
A Religious Organization’S Autonomy In Matters Of Self-Governance: Hosanna-Tabor And The First Amendment, Carl H. Esbeck
A Religious Organization’S Autonomy In Matters Of Self-Governance: Hosanna-Tabor And The First Amendment, Carl H. Esbeck
Faculty Publications
In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required. Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during …
Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett
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 …
Play In The Joints Between The Religion Clauses' And Other Supreme Court Catachreses, Carl H. Esbeck
Play In The Joints Between The Religion Clauses' And Other Supreme Court Catachreses, Carl H. Esbeck
Faculty Publications
Consistent with its fumbling of late when dealing with cases involving religion, the U.S. Supreme Court has taken to reciting the metaphor of play in the joints between the Religion Clauses. This manner of framing the issue before the Court presumes that the Free Exercise and Establishment Clauses run in opposing directions, and indeed will often conflict. It then becomes the Court's task, as it sees it, to determine if the law in question falls safely in the narrows where there is space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause. The …
Missouri's Religious Freedom Restoration Act: A New Approach To The Cause Of Conscience, James A. Hanson
Missouri's Religious Freedom Restoration Act: A New Approach To The Cause Of Conscience, James A. Hanson
Missouri Law Review
This Law Summary will examine both the congressional and state efforts to buttress religious liberty guarantees. Of primary interest here is the most recent addition to this community: Missouri’s RFRA. After outlining the history and language of Missouri’s RFRA, this Summary will provide guidance for the interpretation and application of the statute in Missouri.
Book Review: Freedom Of Religion Under The European Convention On Human Rights, S. I. Strong
Book Review: Freedom Of Religion Under The European Convention On Human Rights, S. I. Strong
Faculty Publications
Oxford University Press has initiated a new series on the European Convention on Human Rights and, in light of recent world events, could not have found a more timely first installment than Carolyn Evans's book on freedom of religion. However, the choice of topics is sound even when one sets aside the current interest in the interplay between law and religion.
Bankrupt Tithers, The Eight Circuit & The Supreme Court: Still Praying For Rfra Relief From Bankruptcy Law, Rachel A. Wilson
Bankrupt Tithers, The Eight Circuit & The Supreme Court: Still Praying For Rfra Relief From Bankruptcy Law, Rachel A. Wilson
Missouri Law Review
The enactment of the Religious Freedom Restoration Act (RFRA) is one of the most important and controversial congressional acts since Congress drafted the Free Exercise Clause. RFRA greatly increases the likelihood that a free exercise of religion claim will succeed by restoring the compelling governmental interest test. Prior to RFRA, the Supreme Court abandoned this test in Employment Division v. Smith Due to the pressure President Clinton brought to bear on the Justice Department in the instant case, it withdrew its brief, which denied that RFRA applied to this bankruptcy case. Without the Justice Department's input, the Eighth Circuit applied …
A Restatement Of The Supreme Court's Law Of Religious Freedom: Coherence, Conflict Or Chaos?, Carl H. Esbeck
A Restatement Of The Supreme Court's Law Of Religious Freedom: Coherence, Conflict Or Chaos?, Carl H. Esbeck
Faculty Publications
Religious freedom as guaranteed in the First Amendment makes religious pluralism more likely, while pluralism makes the maintenance of religious freedom as a fundamental civil right more necessary. It seems there is a limit, however, to the expansion of America's religious pluralism that, when exceeded, shatters cultural consensus thus rendering impossible the political and civil discourse necessary to sustain democratic institutions.1 This follows because pluralism promises freedom but exacts a price in civic disunity and moral confusion. The question thereby resolves itself into just how a religiously diverse people are to live together, despite their deepest differences, while sharing in …
Government Regulation Of Religiously Based Social Services: The First Amendment Considerations, Carl H. Esbeck
Government Regulation Of Religiously Based Social Services: The First Amendment Considerations, Carl H. Esbeck
Faculty Publications
A daunting welter of variables confronts anyone who sets out to systematize the First Amendment's effect on the government's role in regulating social services operated by religious organizations. The task is further complicated because the regulations in question often were promulgated as a consequence of the monitoring that inevitably accompanies government spending on private-sector welfare programs. The most suitable methodology should take into account: 1) the nature of the organizations that are the object of the government's regulation or program of aid; 2) the interrelationship between government and religious organizations that results from the regulation or aid; and 3) the …