Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 14 of 14

Full-Text Articles in Law

Natural Law And The Rhetoric Of Empire: Reynolds V. United States, Polygamy, And Imperialism, Nathan B. Oman Jan 2011

Natural Law And The Rhetoric Of Empire: Reynolds V. United States, Polygamy, And Imperialism, Nathan B. Oman

Washington University Law Review

In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds, and the anti-polygamy legislation and litigation that it midwifed, as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the ...


Disestablishing Deism: Advocating Free Exercise Challenges To State-Induced Invocations Of God, Michael Blank Jan 2009

Disestablishing Deism: Advocating Free Exercise Challenges To State-Induced Invocations Of God, Michael Blank

Washington University Journal of Law & Policy

The popularity of Atheist literature contrasts sharply with the prevalence of god and religion in American public life. The privileged status of religion in America leads to some frustration amongst Atheists who have tried and failed to prevent the state from invoking god. This Note will suggest that Atheists should challenge state-induced invocations of god under the Free Exercise Clause. Because of the difference in doctrine, Free Exercise challenges may succeed where Establishment Clause challenges have failed. More specifically, this Note will examine four instances of so-called ceremonial deism: the Pledge of Allegiance, legislative prayer, oaths of office, and oaths ...


Filling The First Amendment Gap: Can Gideons Get Away With In-School Bible Distribution By Exploiting The Play In The Joints Between The Free Exercise And Establishment Clauses?, Bryan K. Clark Jan 2008

Filling The First Amendment Gap: Can Gideons Get Away With In-School Bible Distribution By Exploiting The Play In The Joints Between The Free Exercise And Establishment Clauses?, Bryan K. Clark

Washington University Journal of Law & Policy

No abstract provided.


The Endorsement Court, Jay D. Wexler Jan 2006

The Endorsement Court, Jay D. Wexler

Washington University Journal of Law & Policy

The Rehnquist Court was the first to apply the so-called “endorsement test” to evaluate the constitutionality of government-sponsored religious symbols and displays. The test asks whether a “reasonable observer” would feel that the government has sent “a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Although the Supreme Court itself has applied the endorsement test in only a handful of cases, the test has played an extremely important role in how courts throughout the country have evaluated government ...


Some Animals Are More Equal Than Others: The Rehnquist Court And “Majority Religion”, Garrett Epps Jan 2006

Some Animals Are More Equal Than Others: The Rehnquist Court And “Majority Religion”, Garrett Epps

Washington University Journal of Law & Policy

This Essay explores the evolution of the remarkable new view of religion and the Constitution during the Rehnquist Court era. Part II analyzes Justice Scalia’s dissent in Lee v. Weisman, which set out the agenda for the religious caucus of the Court in the early years. Part III shows how the rhetoric of equality and historical grievance has been used to dismantle the boundary—for old time’s sake, let us call it a “wall of separation”—that separated religious institutions from the public fisc. Part IV analyzes Justice Scalia’s dissent in McCreary County v. American Civil Liberties ...


The Apparent Consistency Of Religion Clause Doctrine, Abner S. Greene Jan 2006

The Apparent Consistency Of Religion Clause Doctrine, Abner S. Greene

Washington University Journal of Law & Policy

A hallmark of religion clause scholarship is the complaint that the doctrine is a hopeless muddle. However, the Rehnquist Court brought a considerable amount of consistency—well, apparent consistency— to the doctrine. I say “apparent consistency” because, just as a paradox is only a seeming contradiction, so was the Rehnquist Court’s religion clause jurisprudence only seemingly consistent. The doctrine focuses on whether the government singles out religion for special benefit (generally problematic under the Establishment Clause) or for special burden (generally problematic under the Free Exercise Clause). If, on the other hand, the government benefits religion as part of ...


What's Right And Wrong With “No Endorsement”, Thomas C. Berg Jan 2006

What's Right And Wrong With “No Endorsement”, Thomas C. Berg

Washington University Journal of Law & Policy

Contrary to Professor Wexler, I argue that unless the endorsement test is properly understood and limited, it has the critical flaw of putting the Establishment Clause at war with the other religion guarantee of the First Amendment, the Free Exercise Clause. If the Establishment Clause forbade government endorsement of religion in all contexts, it would undermine the government’s ability to give special accommodation to religious practice and thus would severely impair free exercise values. “No endorsement of religion” thus must function, not as the general requirement of the Establishment Clause, but only as a rule for the particular class ...


Justice Scalia And The Religion Clauses: A Comment On Professor Epps, Eric R. Claeys Jan 2006

Justice Scalia And The Religion Clauses: A Comment On Professor Epps, Eric R. Claeys

Washington University Journal of Law & Policy

In this Comment, I hope to identify the areas in which Professor Epps makes novel and important insights, and the areas in which originalists and religionists will disagree with how he evaluates those insights.


The Elusive Meaning Of Religious Equality, Robin Charlow Jan 2005

The Elusive Meaning Of Religious Equality, Robin Charlow

Washington University Law Review

Raging national debates about the relationship of church and state often find parties sparring over whether the government is treating religious interests equally. This Article endeavors to explain why there is such widespread disagreement about the meaning of religious equality. It explores both jurisprudential and doctrinal sources of dispute, including: the multidimensional nature of equality generally, the uniqueness of religion, the difficulty of defining religion, and the problem of identifying the proper baseline or point of comparison for assessing religious equality. Ultimately, we cannot separate issues of religious equality from disputes about the meaning of the Constitution's religion clauses ...


Minority Religions And The Religion Clauses, Thomas C. Berg Jan 2004

Minority Religions And The Religion Clauses, Thomas C. Berg

Washington University Law Review

Part I of the Article offers reasons why the protection of minority religions should be an important consideration in interpreting the Religion Clauses. Part II then addresses various difficulties and complications in the idea of protecting minority faiths. In addition to the fact that the constitutional text protects all religious faiths, there are difficulties in the effort to define which faiths are minorities. Because of America’s complex patterns of religious identities, who is a minority will often vary depending on the geographical location, on the institutional setting in which a particular legal issue arises, and on how one chooses ...


Ratchet Plus? Possible Constitutional Foundations For The Religious Freedom Restoration Act Of 1993, Jeremy Meyer Jan 1995

Ratchet Plus? Possible Constitutional Foundations For The Religious Freedom Restoration Act Of 1993, Jeremy Meyer

Urban Law Annual ; Journal of Urban and Contemporary Law

No abstract provided.


Ministry And Mortar: Historic Preservation And The First Amendment After Barwick, Robert L. Crewdson Jan 1988

Ministry And Mortar: Historic Preservation And The First Amendment After Barwick, Robert L. Crewdson

Urban Law Annual ; Journal of Urban and Contemporary Law

On July 2, 1986, the New York Court of Appeals refused to exempt the Church of St. Paul and St. Andrew in New York City from the city's landmark preservation ordinance on the basis of the Free Exercise Clause of the first amendment. Although Church of St. Paul and St. Andrew v. Barwick involved a declaratory judgment action and the court based its decision on ripeness, it reaffirmed the constitutional standard for religious organizations announced six years earlier in Society for Ethical Culture v. Spatt. The court in Barwick relied on the Spatt court's holding that application of ...


The Ninth Circuit's Eleventh Commandment To Religious Groups: Thou Shalt Not Be Liable For Thine Intentional Intangible Torts: Paul V. Watchtower Bible And Tract Society Of New York, Inc., 819 F.2d 875 (9th Cir. 1987), Seth Ptasiewicz Jan 1988

The Ninth Circuit's Eleventh Commandment To Religious Groups: Thou Shalt Not Be Liable For Thine Intentional Intangible Torts: Paul V. Watchtower Bible And Tract Society Of New York, Inc., 819 F.2d 875 (9th Cir. 1987), Seth Ptasiewicz

Washington University Law Review

No abstract provided.


Servitude Without Solvency: The Debtor's Right To Continue Religious Contributions During A Chapter 13 Rehabilitation Plan, Nicholas A. Franke Jan 1988

Servitude Without Solvency: The Debtor's Right To Continue Religious Contributions During A Chapter 13 Rehabilitation Plan, Nicholas A. Franke

Washington University Law Review

No abstract provided.