Law Commons^™

The Free Exercise Of Religion, Arthur J. Goldberg

Akron Law Review

Freedom of speech and of the press, guaranteed by the First Amendment, is today regarded to be our most preferred freedom. Justice Cardozo once said this freedom is the matrix, the indispensable condition of nearly every other freedom.

But, to the Founding Fathers, freedom of religion was regarded to be preeminent among fundamental rights. And for good reasons. The immediate forebearers of the Framers of the Constitution, emigrated primarily because they were denied the right freely to exercise their respective religious beliefs not sanctioned by the established Church of England. The Colonists were religious dissenters. They adamantly insisted upon their …

Citizenship Education And The Free Exercise Of Religion, Tyll Van Geel

Akron Law Review

Part One of this article provides a broad-brush overview of constitutional doctrine as it bears on citizenship education in the public schools. The remaining parts of the article focus on a Free Exercise challenge to the introduction of a Callaneseque program of citizenship education in a public school. Part Two thus explicates Callan’s theory. Part Three outlines my approach to the Free Exercise Clause. Part Four applies that approach to a challenge brought against a Callanesque program of citizenship education. Part Five takes up other possible rights-based limits on the education power and offers a suggestion regarding how citizenship education …

God & Man In The Military: Military Commanders And The First Amendment, James J. Woodruff Ii

James J. Woodruff II

In an attempt to provide clarity in the stormy seas presented at the intersection of church and state we have followed a three-step process to resolve religious liberty issues. A military commander may experience bewilderment when confronted with questions such as when is public prayer allowed or when can a religious artwork be displayed on amilitary installation. This article will review the three-step process to utilize in answering most religious-based First Amendment issues that arise during military operations. It will also provide a new manner of thinking regarding the separation of church and state.

Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk

Michael Heise

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key …

“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty

Pepperdine Law Review

At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of Sharī’ah law. They hope to join the seven states that have ostensibly banned it to date. Anti-Sharī’ah advocates have cited a number of cases to back their tenuous claim that Sharī’ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis. There is no creeping …

Public Funding For Religious Schools: Difficulties And Dangers In A Pluralistic Society, Laura S. Underkuffler

Laura S. Underkuffler

No abstract provided.

Installations Of Jewish Law In Public Urban Space: An American Eruv Controversy, Charlotte Elisheva Fonrobert

Chicago-Kent Law Review

This article analyzes the ongoing controversy over the installation of an eruv in Westhampton Beach. The author first provides an analytical description of the case with reference to other recent eruv controversies. Similar to arguments advanced in earlier eruv controversies, lawyers in the Westhampton case have taken recourse to the First Amendment, with proponents of the eruv relying on the free exercise clause, and opponents relying on the establishment clause. The article then proceeds to discuss the implications of this controversy for the larger issues of religion in the public sphere, as one of the critical issues emerging in all …

Intentional Discrimination In Establishment Clause Jurisprudence, Caroline Mala Corbin

Articles

In Town of Greece, New York v. Galloway, the Supreme Court upheld a legislative prayer practice with overwhelmingly Christian prayers in part because the Court concluded that the exclusion of all other religions was unintentional. This requirement-that a religiously disparate impact must be intentional before it amounts to an establishment violation-is new for Establishment Clause doctrine. An intent requirement, however, is not new for equal protection or free exercise claims. This Essay explores the increased symmetry between the Establishment Clause, the Equal Protection Clause, and the Free Exercise Clause. It argues that many of the critiques of the intentional …

Free Conscience In Decline: The Insignificance Of The Free Exercise Clause And The Role Of The Religious Freedom Restoration Act In The Wake Of Hobby Lobby, John Fahner

Belmont Law Review

Unfortunately, the modern Free Exercise Clause doctrine favors a progressive interpretation concerned more with efficiency and practicality than meaningful protection of conscience. Individual liberty of conscience, once present in the American legal understanding of free exercise, is no longer a concern of the First Amendment. A truly panacean remedy requires an introspective look into the foundations of the Free Exercise Clause and a careful evaluation of the justifications for the jurisprudential departure therefrom. To that end, this note seeks to reinforce the importance and historical understanding of the Free Exercise Clause and highlight the incongruities of the modern doctrine in …

Women And The Free Exercise Clause: Some Thoughts About A (Religious) Feminist Reading, Marie Failinger

Faculty Scholarship

Among the dozens of Supreme Court cases on the free exercise of religion, women play a mostly invisible part. We know of Adell Sherbert and Frieda Yoder; and less famously, Alma Lovell, Lillian Gobitis, Paula Hobbie, Sarah Prince, and Lucie McClure. We know that these women go out into the streets to tell the Good News, refuse to salute idols, refuse to work on the Sabbath, and refuse to go to school in violation of their religion. But, we do not hear their voices very loudly.

At the same time, until recently, we have consistently heard only one woman's voice …

A Corporation Has No Soul, And Doesn't Go To Church: Relating The Doctrine Of Piercing The Veil To Burwell V. Hobby Lobby, Carol Goforth

Carol Goforth