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Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine Oct 2020

Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine

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For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken ...


Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine Jan 2017

Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine

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In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed—and seemed to resolve—a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered ...


A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine Jan 2015

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

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Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.

Part I of this Essay provides a brief overview for analyzing the Supreme Court ...


Deference Or Abdication: A Comparison Of The Supreme Courts Of Israel And The United States In Cases Involving Real Or Perceived Threats To National Security, Eileen Kaufman Jan 2013

Deference Or Abdication: A Comparison Of The Supreme Courts Of Israel And The United States In Cases Involving Real Or Perceived Threats To National Security, Eileen Kaufman

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The Supreme Courts of Israel and the United States treat cases involving national security radically differently, or so it appears on the surface. The fact that the two courts make very different use of justiciability doctrines dramatically affects their willingness to decide “war on terrorism” cases that challenge aspects of national security programs as violative of individual rights. On the surface, the approaches of the two courts thus appear to be radically different, and indeed they are, at least with respect to their willingness to hear and decide cases in “real time” and in terms of their willingness to embrace ...


Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer Jan 2013

Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer

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The author discusses Galloway v. Town of Greece, a case which challenges official prayers at town council meetings. To provide the necessary background information for understanding the issues in Galloway, the author begins with a brief discussion of two other cases, Lemon v. Kurtzman and Marsh v. Chambers. The author then examines the district and circuit court decisions in Galloway and the Establishment Clause issues posed by the case. Next, the author notes issues raised by other lower court decisions involving legislative prayer after Marsh.

Towards the end of the article, to clarify and decide the constitutional issues, the author ...


Supreme Court Fortifies Qualified Immunity For Law Enforcement Officers In Warrant Cases, Martin Schwartz Jan 2013

Supreme Court Fortifies Qualified Immunity For Law Enforcement Officers In Warrant Cases, Martin Schwartz

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This article analyzes the significance of the United States Supreme Court decision in Messerschmidt v. Millender, 132 S.Ct. 1652 (2012), upon §1983 Fourth Amendment claims asserted against state and local law enforcement officers who apply for and enforce warrants. Millender held that police officers who sought and executed a very broad warrant authorizing them to search a residence for guns and gang related material were protected by qualified immunity. The author asserts that §1983 plaintiffs, who seek to recover damages based upon either the application or execution of an allegedly unconstitutional warrant, will now have to overcome various layers ...


Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz Jan 2013

Supreme Court Holds Grand Jury Witnesses Absolutely Immune From § 1983 Liability, Martin Schwartz

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This article discusses the Supreme Court's ruling in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), which extended the absolute witness immunity recognized in Briscoe v. LaHue, to grand jury witnesses. In an unanimous opinion, written by Justice Samuel A. Alito, Jr., the Court held that grand jury witnesses are absolutely immune from §1983 liability for their testimony, and even for conspiring to give false testimony.


The Case Of The Retired Justice: How Would Justice John Paul Stevens Have Voted In J. Mcintyre Machinery, Ltd. V. Nicastro?, Rodger D. Citron Jan 2012

The Case Of The Retired Justice: How Would Justice John Paul Stevens Have Voted In J. Mcintyre Machinery, Ltd. V. Nicastro?, Rodger D. Citron

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No abstract provided.


A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine Jan 2012

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

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This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article ...


The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens, Rodger D. Citron Apr 2011

The Last Common Law Justice: The Personal Jurisdiction Jurisprudence Of Justice John Paul Stevens, Rodger D. Citron

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No abstract provided.


Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering—October 2009 Term, Richard Klein Jan 2011

Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering—October 2009 Term, Richard Klein

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No abstract provided.


The Supreme Court And Judicial Review: Two Views, Thomas A. Schweitzer Jan 2011

The Supreme Court And Judicial Review: Two Views, Thomas A. Schweitzer

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No abstract provided.


Attorney’S Fees In Civil Rights Cases—October 2009 Term, Martin A. Schwartz Jan 2011

Attorney’S Fees In Civil Rights Cases—October 2009 Term, Martin A. Schwartz

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No abstract provided.


Lawyering Decisions—October 2009 Term, Eileen Kaufman Jan 2011

Lawyering Decisions—October 2009 Term, Eileen Kaufman

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No abstract provided.


Hosanna-Tabor And Supreme Court Precedent: An Analysis Of The Ministerial Exception In The Context Of The Supreme Court’S Hands-Off Approach To Religious Doctrine, Samuel J. Levine Jan 2011

Hosanna-Tabor And Supreme Court Precedent: An Analysis Of The Ministerial Exception In The Context Of The Supreme Court’S Hands-Off Approach To Religious Doctrine, Samuel J. Levine

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The United States Supreme Court‘s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court‘s Religion Clause jurisprudence. On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations. The narrow issue at the center of the case is the ministerial exception, a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees. This ...


Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein Jan 2010

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

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No abstract provided.


The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine Jan 2009

The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine

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Although the current state of the United States Supreme Court's Religion Clause jurisprudence is an area of considerable complexity, the Court's approach is largely premised upon a number of basic underlying principles and doctrines. This Symposium issue explores an underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate ...


God And The Land: A Holy War Between Religious Exercise And Community Planning And Development, Patricia E. Salkin, Amy Lavine Jan 2009

God And The Land: A Holy War Between Religious Exercise And Community Planning And Development, Patricia E. Salkin, Amy Lavine

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This article is a brief introduction to The Albany Government Law Review symposium on God and the Land. This piece sets forth a brief history of the Religious Land Use and Institutionalized Persons Act (RLUIPA) setting the backdrop for the controversy that has surrounded the Act and its impact on religious entities and municipalities. Since the enactment of RLUIPA, the floodgates have burst open with litigation in attempts to clarify many ambiguities in the statute. The remainder of the piece provides a sneak preview of the articles contained in The Albany Government Law Review by Professors Angela Carmella, Marci Hamilton ...


An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term (The Twentieth Annual Supreme Court Review), Richard Klein Jan 2009

An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term (The Twentieth Annual Supreme Court Review), Richard Klein

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No abstract provided.


An Analysis Of Death Penalty Decisions From The October 2006 Supreme Court Term (Nineteenth Annual Supreme Court Review, October 2006 Supreme Court Term), Richard Klein Jan 2008

An Analysis Of Death Penalty Decisions From The October 2006 Supreme Court Term (Nineteenth Annual Supreme Court Review, October 2006 Supreme Court Term), Richard Klein

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No abstract provided.


Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein Jan 2007

Death Penalty And Right To Counsel Decisions In The October 2005 Term, Richard Klein

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No abstract provided.


Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer Jan 2007

Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer

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No abstract provided.


Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman Jan 2006

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

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No abstract provided.


Measure 37 And A Spoonful Of Kelo: A Recipe For Property Rights Activists At The Ballot Box, Patricia E. Salkin, Amy Lavine Jan 2006

Measure 37 And A Spoonful Of Kelo: A Recipe For Property Rights Activists At The Ballot Box, Patricia E. Salkin, Amy Lavine

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No abstract provided.


The Supreme Court’S Analysis Of Issues Raised By Death Penalty Litigants In The Court's 2004 Term, Richard Klein Jan 2006

The Supreme Court’S Analysis Of Issues Raised By Death Penalty Litigants In The Court's 2004 Term, Richard Klein

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No abstract provided.


Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer Jan 2006

Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer

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No abstract provided.


U.S. Supreme Court’S 2004 Term Includes Significant Land Use Decisions With A Trilogy Of Takings Cases, Patricia E. Salkin Oct 2005

U.S. Supreme Court’S 2004 Term Includes Significant Land Use Decisions With A Trilogy Of Takings Cases, Patricia E. Salkin

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No abstract provided.


Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin Apr 2005

Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin

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No abstract provided.


Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero Jan 2005

Community Redevelopment, Public Use, And Eminent Domain, Patricia E. Salkin, Lora A. Lucero

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Published just weeks before the U.S. Supreme Court handed down their controversial decision on Kelo v. City of New London in 2005, this article, in correctly predicting the outcome of the Supreme Court opinion, explores in Section I how the concept of what constitutes a public use has evolved over the decades from traditionally accepted uses such as public roads, buildings (e.g., government buildings and schools), and utilities to urban redevelopment. It explains how the broad concepts of community redevelopment have been stretched to encompass needed economic development projects that promise jobs, tax revenue, and other public benefits ...


Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin Jan 2005

Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin

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No abstract provided.