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Full-Text Articles in Law
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. …
Return To Political Theology, Joshua D. Hawley
Return To Political Theology, Joshua D. Hawley
Faculty Publications
There was a time when theology was called the "queen of the sciences." From the beginnings of the university in the High Middle Ages through the nineteenth century, theology formed the backbone of liberal instruction at institutions of higher learning. Those days are long past. What remains of theological investigation in most major American universities has been trans- posed into the study of religion and safely sequestered in "religious studies" departments. Few undergraduates today encounter theology as a discipline-and as for law students, well, the idea that theology might have some relevance for the study of law is regarded in …
Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck
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 …
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 …
Governance And The Religion Question: Voluntaryism, Disestablishment, And America's Church-State Proposition, Carl H. Esbeck
Governance And The Religion Question: Voluntaryism, Disestablishment, And America's Church-State Proposition, Carl H. Esbeck
Faculty Publications
The quandary over how to structure the relationship between religion and the civil state is an ancient one. From the perspective of political philosophy this is the religion question, and events over many centuries have proven that the answer is easy to get wrong. Religion, by its very definition, is the fixed point from which all else is surveyed. It is about ultimate matters, both micro and macro. Hence, religion addresses the irreducible core of personhood and its meaning, while at the same time religion embraces a worldview that transcends and encompasses everything else. Religion generates intense emotions that when …
Murder, Meth, Mammon & Moral Values: The Political Landscape Of American Sentencing Reform (In Symposium On White Collar Crime), Frank O. Bowman Iii
Murder, Meth, Mammon & Moral Values: The Political Landscape Of American Sentencing Reform (In Symposium On White Collar Crime), Frank O. Bowman Iii
Faculty Publications
This Article examines the ongoing American experiment in mass incarceration and considers the prospects for meaningful sentencing reform.
Dissent And Disestablishment: The Church/State Settlement Of The New American Republic, Carl H. Esbeck
Dissent And Disestablishment: The Church/State Settlement Of The New American Republic, Carl H. Esbeck
Faculty Publications
This paper has two aims. They are more in the nature of history than law. The first aim is to show that since the fourth century Western civilization has presupposed that there are not one but two sovereigns. Each has a jurisdiction of legitimate operation, and while there are areas of shared cognizance, there are other subject matter areas in which each is noncompetent to perform the tasks of the other. The second aim of this paper is to uncover historical figures that advanced a proposition concerning religious freedom that became the American church-state settlement.
Religion And The First Amendment: Some Causes Of The Recent Confusion, Carl H. Esbeck
Religion And The First Amendment: Some Causes Of The Recent Confusion, Carl H. Esbeck
Faculty Publications
The United States Supreme Court is surely guilty of making the matter of religion and the First Amendment harder than it ought to be. But it is others who have kept the debate over church/state relations either poisoned with culture-war rhetoric or so shrouded in mystery that seemingly only experts can untangle the juris-prudential snarls. By surrounding this venerable Amendment with a pseudocomplexity concerning the matter of religion these disinformation specialists create confusion, and confusion begets opportunities for further distortion and manipulation. Disagreements over the free exercise of religion and the no-establishment thereof are far simpler to resolve than these …
Charitable Choice And The Critics, Carl H. Esbeck
Charitable Choice And The Critics, Carl H. Esbeck
Faculty Publications
First, the statute prohibits the government from discriminating with regard to religion when determining whether providers are eligible to deliver social services under these programs. Second, the statute imposes on government the duty not to intrude into the religious autonomy of faith-based providers. Third, the statute imposes on both government and participating FBOs the duty not to abridge certain rights of the ultimate beneficiaries of these programs. I will touch on these three principles below, and do so in reverse order.
Myths, Miscues, And Misconceptions: No-Aid Separationism And The Establishment Clause, Carl H. Esbeck
Myths, Miscues, And Misconceptions: No-Aid Separationism And The Establishment Clause, Carl H. Esbeck
Faculty Publications
In neutrality theory the recipients of vouchers, grants, and purchase-of-service contracts are eligible to participate as providers in government social service programs without regard to their religious character. Indeed, religious beliefs and practices are prohibited bases for screening out those who want to be welfare program providers. Notable examples of congressional social service legislation conforming to the rule of religious neutrality are the ‘charitable choice‘ feature imbedded in the Welfare Reform Act of 1996 and the Community Services Block Grant Act of 1998, as well as the provision allowing issuance of child care vouchers to indigent parents in the Child …
Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong
Faculty Publications
The first area of discussion is the structure of each government system. This analysis not only sets the legal framework for later analysis, but demonstrates how both Israel and Iran have brought religion into the very fabric of their legal institutions.The second area of analysis in Part II focuses on the principles of sovereignty and constitutional interpretation utilized by each State. Familiarity with these concepts is necessary in order to learn which religious principles, if any, are incorporated into each nation's general legal environment. These principles, which are implicitly understood by members of the society, are often unstated in judicial …
Christian Constitutions: Do They Protect Internationally Recognized Human Rights And Minimize The Potential For Violence Within A Society? A Comparative Analysis Of American And Irish Constitutional Law And Their Religious Elements, S. I. Strong
Faculty Publications
Section II of this Article studies in greater detail the religio-legal debate currently being waged in American courts and legislatures, including a brief discussion of the religio-legal history of the United States. Section II also describes how the United States resembles and differs from Ireland such that subsequent comparisons will be more accurate. Section III compares the two constitutions by analyzing the provisions and policies most influenced by religion. First, general principles of sovereignty and constitutional interpretation are reviewed to understand the general constitutional framework of each nation. Second, the manner in which personal rights are treated by each nation's …
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 …
First Freedom: Religion And The Bill Of Rights, Carl H. Esbeck
First Freedom: Religion And The Bill Of Rights, Carl H. Esbeck
Faculty Publications
This volume is a collection of seven papers delivered at a symposium assembled in April 1989 upon the occasion, almost two hundred years hence, of the passage of the Bill of Rights by the First Congress. The unifying theme is stated to be the historical context of both Religion Clauses in the First Amendment, but the authors are driven primarily by Establishment Clause concerns. The Thrust of the essays deal with the originalism advanced during the years of Reagan Administration, and nonpreferentialism comes in for particular criticism, both pejoratively characterized as that "growing clamor".
Five Views Of Church-State Relations In Contemporary American Thought, Carl H. Esbeck
Five Views Of Church-State Relations In Contemporary American Thought, Carl H. Esbeck
Faculty Publications
Views concerning the appropriate relationship between church and state are rapidly becoming almost as numerous as America's religious sects. The Constitution's treatment of religious liberty, thought by many to be a matter long settled, has now erupted into a many-sided debate. Not only lawyers, judges and legal commentators are involved; historians and sociologists, theologians and ecclesiastics, political theorists and statesmen also participate in the debate. It is part of a much larger struggle over a redefinition, or for some a reclamation, of the role of religion in American public life. At times this debate focuses on discrete environments, such as …
Tort Claims Against Churches And Ecclesiastical Officers: The First Amendment Considerations, Carl H. Esbeck
Tort Claims Against Churches And Ecclesiastical Officers: The First Amendment Considerations, Carl H. Esbeck
Faculty Publications
Federal and state courts are increasingly confronted with the unenviable task of giving legal definition to matters affecting relations between religion and government.' Many of the lawsuits pitting church against state are surface manifestations of a more fundamental disintegration of an American public philosophy.
The Naked Public Square: Religion And Democracy In America , Carl H. Esbeck
The Naked Public Square: Religion And Democracy In America , Carl H. Esbeck
Faculty Publications
A crisis of confidence in our institutions and talk about loss of life's purpose are everywhere. Sociologists describe the modern individual's sense of isolation, his so-called spiritual homelessness, his weakening sense of values, and his bewilderment in the face of seemingly impersonal forces before which he feels helpless and often victimized.
Use Of Government Funding And Taxing Power To Regulate Schools, Carl H. Esbeck, Kline Capps
Use Of Government Funding And Taxing Power To Regulate Schools, Carl H. Esbeck, Kline Capps
Faculty Publications
The past two decades in America have witnessed a resurgence of interest in religious-based schooling. Manifestations of this trend are evident in the increased number of primary and secondary students enrolled in religious schools and the rapidity with which new church-affiliated schools are being opened.
Toward A General Theory Of Church-State Relations And The First Amendment, Carl H. Esbeck
Toward A General Theory Of Church-State Relations And The First Amendment, Carl H. Esbeck
Faculty Publications
Although government intervention in religious affairs is a new and understandably worrisome experience for many American churches, history instructs us that the confrontation is not novel. We can find some comfort in the fact that this double wrestle of state with church and state with individual believers is a perennial match. After all, it has been nearly sixty years since a brutish measure in Oregon making parochial school education unlawful had to be sidelined by the United States Supreme Court in Pierce v. Society of Sisters.' Over forty-five years ago the Supreme Court decided Lovell v. City of Griffin, snuffing …
Establishment Clause Limits On Governmental Interference With Religious Organizations, Carl H. Esbeck
Establishment Clause Limits On Governmental Interference With Religious Organizations, Carl H. Esbeck
Faculty Publications
In this article it will be argued that the establishment clause, properly viewed, functions as a structural provision regimenting the nature and degree of involvement between government and religious associations." The degree of involvement should be a limited one, although it is clear that the interrelationship need not nor cannot be eliminated altogether. Although the degree of desired separation has proven to be a continuing controversy, the goal of separation is not so divisive. The aim of separation of church and government is for each to give the other sufficient breathing space. The ordering principle is reciprocity in which "both …
Religion And A Neutral State: Imperative Or Impossibility?, Carl H. Esbeck
Religion And A Neutral State: Imperative Or Impossibility?, Carl H. Esbeck
Faculty Publications
The thesis of this Article is that the myth-of-neutrality argument is partially right and partially wrong. For reasons of religious liberty, the state can and should avoid any involvement with matters of religious worship, and the propagation or inculcation of matters that comprise the very heart of one's belief concerning the nature and destiny of mankind. Conversely, the state cannot retreat from the regulation of certain conduct which is arguably immoral and still claim its neutrality concerning the rightness of the conduct. The very decision by the state to withdraw its regulation, leaving the morality of the conduct up to …