Law Commons^™

Let History Repeat Itself: Solving Originalism's History Problem In Interpreting The Establishment Clause, Neil Joseph

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court's Establishment Clause jurisprudence is all over the place. The current justices have widely divergent views on the Establishment Clause's meaning, and the Lemon test has been widely panned by several justices. Originalist judges, however, have had a fairly consistent approach to interpreting the Establishment Clause. This largely stems from their reliance on history. This Note argues that their use of history in analyzing the Establishment Clause is flawed. Originalist Establishment Clause jurisprudence has been and is criticized for being unprincipled. And those criticisms are correct. Originalists encounter such criticism because the justices struggle to reconcile historical practice …

Kennedy V. Bremerton School District: A Fumble The Supreme Court Needs To Recover, Emily C. Neely

Northern Illinois Law Review Supplement

Many people support one or the other: freedom of religion or freedom from religion. Current Supreme Court case law favors the protection of students' rights under the Establishment Clause. However, First Amendment free speech rights for public officials do not enjoy the same protection. Previous notes seek to affirm the constitutionality of restricting the speech of public officials in deference to the Establishment Clause. This Note differs from those, however, by acknowledging the prominent role that the Establishment Clause plays in protecting student rights, but also advocating for greater First Amendment protection for public officials.

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

Symposium Introduction: The Religion Clauses In The 21st Century, William P. Marshall, Vivian E. Hamilton, John E. Taylor

Vivian E. Hamilton

No abstract provided.

Inappropriate For Establishment Clause Scrutiny: Reflections On Mary Nobles Hancock’S, God Save The United States And This Honorable County Board Of Commissioners: Lund, Bormuth, And The Fight Over Legislative Prayer, Samuel W. Calhoun

Samuel W. Calhoun

This Response to Mary Nobles Hancock’s Note, after noting the complexity of the issues she presents, briefly comments on Ms. Hancock’s analysis, which focuses on how current Supreme Court doctrine should be applied to legislative prayer. Part III ranges more broadly. The author's basic position is that the Supreme Court has long misconstrued the Establishment Clause. This misinterpretation in turn has led the Court mistakenly to interpose itself into the realm of legislative prayer, an incursion the Founders never intended.

The Trump Travel Ban: Rhetoric Vs Reality, Jeffrey F. Addicott

Faculty Articles

President Trump's "Muslim ban" set the nation afire with debate. Opponents to the ban were motivated by the President's underlying motivations. Three iterations of the travel ban were struck down by lower courts. Before the Supreme Court, however, the travel ban was upheld. First, the plain language of § 1182(f) granted broad discretion to the President. Second, it did not violate the prohibition of discrimination against selected categories in § 1152(a)(1)(A). Finally, it failed to violate the Establishment Clause because it is facially legitimate, satisfying rational basis review. The Court found no facial evidence demonstrating discriminatory bias.

Taxing Utopia, Samuel Brunson

Samuel D. Brunson

Nineteenth-century American religious movements challenged many aspects of American society. Although their challenges to mainstream America's vision of sex and marriage remain the best-known aspects of many of these groups, their challenges to traditional American economics are just as important. Eschewing individual ownership of property, many of these new Christian movements followed the New Testament model of a body of believers that held all property in common.

In the early twentieth century, these religious communal groups had to contend with something new: an income tax. Communalism did not fit into the individualistic economic system envisioned b-y the drafters of the …

God Save The United States And This Honorable County Board Of Commissioners: Lund, Bormuth, And The Fight Over Legislative Prayer, Mary Nobles Hancock

Washington and Lee Law Review

This Note addresses whether, and to what extent, the four factors proposed by the Fourth Circuit, and subsequently rejected by the Sixth Circuit, are an appropriate test of the constitutionality of a legislative prayer practice under United States Supreme Court jurisprudence. Part II explores the background of the Establishment Clause and legislative prayer. The Supreme Court has placed significant emphasis on the history of legislative prayer in evaluating modern prayer practices, as seen in its two cases Marsh v. Chambers and Town of Greece v. Galloway. Part III examines the first two circuit court decisions to consider challenges to local …

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

Washington and Lee Law Review

This Response to Mary Nobles Hancock's Note explains Christian nationalism, and argues that government sponsored Christian prayers reflect and exacerbate Christian nationalism. It further contends that to help curb Christian nationalism and its ill effects, legislative prayers ought to cease entirely. Such a result is most in keeping with the Establishment Clause goal of avoiding a caste system based on religious belief.

Inappropriate For Establishment Clause Scrutiny: Reflections On Mary Nobles Hancock’S, God Save The United States And This Honorable County Board Of Commissioners: Lund, Bormuth, And The Fight Over Legislative Prayer, Samuel W. Calhoun

Washington and Lee Law Review

This Response to Mary Nobles Hancock’s Note, after noting the complexity of the issues she presents, briefly comments on Ms. Hancock’s analysis, which focuses on how current Supreme Court doctrine should be applied to legislative prayer. Part III ranges more broadly. The author's basic position is that the Supreme Court has long misconstrued the Establishment Clause. This misinterpretation in turn has led the Court mistakenly to interpose itself into the realm of legislative prayer, an incursion the Founders never intended.

Legislator-Led Legislative Prayer And The Search For Religious Neutrality, Aishwarya Masrani

Duke Journal of Constitutional Law & Public Policy Sidebar

Leading a group in prayer in a public setting blurs the line between public and private. Such blurring implicates a constitutional tension between the Establishment Clause and the Free Exercise Clause. This tension is magnified when the constitutionality of prayer is questioned in the context of democratic participation. Current Supreme Court precedent holds legislative prayer to be constitutional, but the relevant cases, Marsh v. Chambers and Town of Greece, NY v. Galloway, do not address the specific constitutionality of legislator-led prayer. There is currently a circuit split on the subject: in Bormuth v. County of Jackson, the United …

Reflections On The Church/State Puzzle, Kermit V. Lipez

The Journal of Appellate Practice and Process

No abstract provided.

Devotion ̶T̶O̶ And The Rule Of Law: Acknowledging The Role Of Religious Values In Judicial Decision-Making, Priya Purohit

Indiana Law Journal

This Comment advocates for the acknowledgment of religious values in judicial decision-making in three parts. Part I explores the role of religion in American politics, and more specifically, the role of religion in federal judicial confirmation hearings and state-level judicial elections. Membership to an institutionalized religion often performs an essential gatekeeping function when it comes to assessing the background or personal values of a candidate for political or judicial office. The initially positive role of religion in judicial selection processes suggests that the practice of refusing to acknowledge the role that religion likely already plays in judicial decision-making is wholly …

Professor Katherine Franke Joins An Amicus Brief In Commonwealth Of Pennsylvania And New Jersey V. Trump, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

On Monday, March 25th, Professor Katherine Franke, Faculty Director of the Law, Rights, and Religion Project at Columbia Law School, joined an amicus brief in Commonwealth of Pennsylvania and New Jersey v. Trump,* a challenge to two rules that exempt employers with religious or moral objections from compliance with the contraceptive coverage requirement of the Affordable Care Act.

Stretching The First Amendment: Religious Freedom And Its Constitutional Limits Within The Adoption Sector, Tracy Smith

Pepperdine Law Review

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.

The Travel Ban Decision, Administrative Law, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Opportunistic Originalism And The Establishment Clause, Caroline Mala Corbin

Articles

This Article argues that the Supreme Court's use of originalism is opportunistic because sometimes the Court relies on it, and sometimes it does not. This inconsistency is evident in two recent decisions with significant Establishment Clause consequences: Town of Greece v. Galloway (2014) and Trinity Lutheran Church v. Comer (2017). In Town of Greece, the Supreme Court applied an originalist analysis to uphold the government's policy of sponsoring predominantly Christian prayers before town meetings. In Trinity Lutheran Church, the Supreme Court failed to conduct an originalist analysis of direct government funding to churches before ordering a state to award a …

There Is No Such Thing As Freedom Of Religion: How Constitutional Law Complicates The Divide Between Church And State, Annah Mae Heckman

Senior Projects Spring 2019

Senior Project submitted to The Division of Social Studies of Bard College.

Book Review, Richard Garnett

Journal Articles

Richard Garnett reviews Ellis M. West's The Free Exercise of Religion in America: Its Original Constitutional Meaning

This is a review of Professor Ellis M. West's 2019 study of the original meaning of "free exercise of religion."

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

Articles

No abstract provided.

Jews And The Culture Wars: Consensus And Dissensus In Jewish Religious Liberty Advocacy, Michael A. Helfand

Michael A Helfand