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Religious Freedom And Recycled Tires: The Meaning And Implications Of Trinity Lutheran, Richard W. Garnett, Jackson C. Blais Jan 2017

Religious Freedom And Recycled Tires: The Meaning And Implications Of Trinity Lutheran, Richard W. Garnett, Jackson C. Blais

Journal Articles

The Supreme Court's decision in Trinity Lutheran clearly affirmed a First Amendment rule against anti-religious discrimination. At the same time, it raised or left open a number of important and interesting questions about education reform, the relevance of anti-Catholic bias to states' so-called Blaine Amendments, and the sharpening tension between religious freedom and the application of antidiscrimination laws.


Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams Mar 2016

Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams

Court Briefs

This brief addresses the importance of the principle of church autonomy and the protections provided by the First and Fourteenth Amendments and this Court's precedents regarding religious denominations' internal mandatory dispute-resolution procedures.


Religious Accommodations And – And Among – Civil Rights: Separation, Toleration, And Accommodation, Richard W. Garnett Feb 2015

Religious Accommodations And – And Among – Civil Rights: Separation, Toleration, And Accommodation, Richard W. Garnett

Journal Articles

This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in ...


Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett Jan 2014

Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett

Journal Articles

This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is ...


'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett Jan 2013

'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett

Journal Articles

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any ...


Confusion Isn't Everything, Mark Mckenna, William Mcgeveran Jan 2013

Confusion Isn't Everything, Mark Mckenna, William Mcgeveran

Journal Articles

The typical shorthand justification for trademark rights centers on avoiding consumer confusion. But in truth, this encapsulation mistakes a method for a purpose: confusion merely serves as an indicator of the underlying problems that trademark law seeks to prevent. Other areas of law accept confusion or mistake of all kinds, intervening only when those errors lead to more serious harms. Likewise, every theory of trademark rights considers confusion troubling solely because it threatens more fundamental values such as fair competition or informative communication. In other words, when it comes to the deep purposes of trademark law, confusion isn’t everything ...


Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia Apr 2012

Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia

Journal Articles

WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm.

The lessons of the Pentagon Papers case for ...


Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer Jan 2010

Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer

Journal Articles

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no law...abridging the freedom of speech or of the press," thus at least nominally indicating that limitations on the ...


Judicial Review, Local Values, And Pluralism, Richard W. Garnett Jan 2009

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Journal Articles

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and ...


Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett Jan 2009

Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett

Journal Articles

The First Amendment’s “Establishment Clause” is widely thought to protect “conscience.” Does it? If so, how? It is proposed in this paper that the no-establishment rule does indeed promote and protect religious liberty, and does safeguard conscience, but not (or, at least, not only) in the way most people think it does, namely, by sparing those who object from the asserted injury to their conscience caused by public funding of religious activity.

The Supreme Court’s decision in Hein v. Freedom from Religion Foundation - a case in which the Justices limited taxpayer standing to bring Establishment Clause claims - reminds ...


Do Churches Matter? Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett Jan 2008

Do Churches Matter? Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett

Journal Articles

In recent years, several prominent scholars have called attention to the importance and role of First Amendment institutions and there is a growing body of work informed by an appreciation for what Professor Balkin calls the infrastructure of free expression. The freedom of expression, he suggests, requires more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]. The intuition animating this scholarship, then, is that the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of ...


Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett Jan 2007

Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett

Journal Articles

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand ...


Church, State, And The Practice Of Love, Richard W. Garnett Jan 2007

Church, State, And The Practice Of Love, Richard W. Garnett

Journal Articles

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.

The specific goal for this paper is to draw from Deus caritas est some insight ...


The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna Jan 2006

The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna

Journal Articles

This contribution to the Washington University School of Law conference on the Rehnquist Court and the First Amendment addresses the Rehnquist Court's view of the role of the First Amendment in intellectual property cases. It argues that, while the Rehnquist Court was not eager to find a conflict between intellectual property laws and the First Amendment, there is reason to believe that it set the stage for greater First Amendment scrutiny of intellectual property protections. At the very least, the Court left that road open to future courts, which might be inclined to view intellectual property more skeptically.


Religion, Division, And The First Amendment, Richard W. Garnett Jan 2006

Religion, Division, And The First Amendment, Richard W. Garnett

Journal Articles

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that ...


Jaycees Reconsidered: Judge Richard S. Arnold And The Freedom Of Association, Richard W. Garnett Jan 2005

Jaycees Reconsidered: Judge Richard S. Arnold And The Freedom Of Association, Richard W. Garnett

Journal Articles

In Roberts v. United States Jaycees, the Supreme Court reversed Judge Richard S. Arnold's decision for the Court of Appeals and held­ - without dissent - that the First Amendment did not shield the Jaycees' men-only membership policy from the non-discrimination requirements of the Minnesota Human Rights Act. The claim in this essay is that Judge Arnold's position and decision in the Jaycees case deserved, and still deserve, more thoughtful and sympathetic treatment. Even some of Judge Arnold's many friends and fans tend to treat as something of an embarrassing lapse or anomalous error his conclusion in that case ...


Changing Minds: Proselytism, Freedom, And The First Amendment, Richard W. Garnett Jan 2005

Changing Minds: Proselytism, Freedom, And The First Amendment, Richard W. Garnett

Journal Articles

Proselytism is, as Paul Griffiths has observed, a topic enjoying renewed attention in recent years. What's more, the practice, aims, and effects of proselytism are increasingly framed not merely in terms of piety and zeal; they are seen as matters of geopolitical, cultural, and national-security significance as well. Indeed, it is fair to say that one of today's more pressing challenges is the conceptual and practical tangle of religious liberty, free expression, cultural integrity, and political stability. This essay is an effort to unravel that tangle by drawing on the religious-freedom-related work and teaching of the late Pope ...


The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett Jan 2002

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Journal Articles

No abstract provided.


Voluntary Campaign Finance Reform, John C. Nagle Jan 2001

Voluntary Campaign Finance Reform, John C. Nagle

Journal Articles

No abstract provided.


Common Schools And The Common Good: Reflections On The School-Choice Debate, Richard W. Garnett Jan 2001

Common Schools And The Common Good: Reflections On The School-Choice Debate, Richard W. Garnett

Journal Articles

No abstract provided.


The Primacy Of Political Actors In Accommodation Of Religion, William K. Kelley Jan 2000

The Primacy Of Political Actors In Accommodation Of Religion, William K. Kelley

Journal Articles

This article focuses on the relationship between freedom of religion and the norm against non-establishment of religion in the context of government efforts to accommodate religious practices. It analyzes First Amendment doctrine in this area, and concludes that the Supreme Court has consistently been generous in permitting accommodations of religion when they are the product of judicial decisions; in other words, at least until recently the Court has been open to mandatory accommodations so long as they are ordered by judges. By contrast, the Court has long been suspicious of - and far from generous in permitting - accommodations as the result ...


Is The New York Times "Actual Malice" Standard Really Necessary? A Comparative Perspective, Geoffrey Bennett, Russell L. Weaver Jan 1993

Is The New York Times "Actual Malice" Standard Really Necessary? A Comparative Perspective, Geoffrey Bennett, Russell L. Weaver

Journal Articles

No abstract provided.


Protecting Religious Liberty: Judicial And Legislative Responsibilities, Gerard V. Bradley Jan 1992

Protecting Religious Liberty: Judicial And Legislative Responsibilities, Gerard V. Bradley

Journal Articles

Is the First Amendment hostile to religion? Answering that question requires at least the usual professorial ration of caveats. I assure you that I will directly answer the question. I submit, though, that the caveats constitute a more important, deeper response, a response which questions the question itself. Were I more radical in my intellectual sympathies, I would propose to deconstruct the question.


The Meaning Of "Religion" In The School Prayer Cases, Charles E. Rice Jan 1964

The Meaning Of "Religion" In The School Prayer Cases, Charles E. Rice

Journal Articles

No abstract provided.