Law Commons^™

Think We’Re Powerless Against Hate Speech? The Constitution Provides Plenty Of Room To Address It, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Calif. Supreme Court Right To Strike Down Law Requiring Trump To Release Tax Returns To Get On The Ballot, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

The Unnecessary And Unfortunate Focus On “Animus,” “Bare Desire To Harm,” And “Bigotry” In Analyzing Opposition To Gay And Lesbian Rights, James E. Fleming

Faculty Scholarship

I am delighted to participate in this symposium on Professor Linda C. McClain’s wonderful new book, Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. All of the other papers in this symposium focus on Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (and thus connect with Chapter Eight of her book, on claims of religious exemptions from protections of gay and lesbian rights), while my piece will join issue with the related Chapter Seven, on bigotry, motives, and morality in the Supreme Court’s gay and lesbian rights cases. In this brief Essay, I cannot do justice …

The Impact Of Edwards V. Aguillard On Science Education In Louisiana Public Schools, Abigail Mcdonough

Senior Honors Theses

The landmark Louisiana case Edwards v. Aguillard ushered in a new era of legislation in which certain ideas are discriminated against because of their religious basis. Due to the Court’s misinterpretation of evidence and employment of a faulty test for a secular purpose, the Court is responsible for disastrous and far-reaching implications. This thesis will examine how the 1987 Supreme Court case Aguillard shifted American science education away from the exploration of multiple competing theories of man’s origins in the classroom. Although America was founded on principles such as freedom of religion and thought which should be protected, the Aguillard …

Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson

Washington and Lee Law Review

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is …

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.

State Regulation Of Religious Education, Neal Devins

Neal E. Devins

No abstract provided.

Religion And For-Profit Corporations: A Real Issue Hidden By Flimsy Arguments, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Thoughts On Religious Discrimination From The Cairo Geniza, Nathan B. Oman

Nathan B. Oman

No abstract provided.

The Need For A Law Of Church And Market, Nathan B. Oman

Nathan B. Oman

This Essay uses Helfand and Richman’s fine article to raise the question of the law of church and market. In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought for the …

International Legal Experience And The Mormon Theology Of The State, 1945-2012, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Glenn Beck Bad News For Religious Conservatism, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Nathan B. Oman

Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts …

From The Fuggers To Justice Ginsburg, Nathan B. Oman

Nathan B. Oman

No abstract provided.

"The Living Oracles": Legal Interpretation And Mormon Thought, Nathan B. Oman

Nathan B. Oman

No abstract provided.

The Forum Of Conscience: Applying Standards Under The Free Exercise Clause, Paul Marcus

Paul Marcus

The 1973 Supreme Court decision in Wisconsin v. Yoder reenforced and amplified the Court's earlier holding in Sherbert v. Verner that the free exercise clause of the first amendment requires the state to render substantial deference to religiously motivated behavior in the application of its laws and regulatory schemes. In this article, Mr. Marcus traces the evolving standards of free exercise doctrine and observes that the "balancing test" which has resulted from that evolution requires still further refinement to give religious freedom its full constitutional due. The author then illustrates how the new standards of free exercise might be applied …

God And The Executioner: The Influence Of Western Religion On The Use Of The Death Penalty, Davison M. Douglas

Davison M. Douglas

In this Essay, Professor Douglas conducts an historical review of religious attitudes toward capital punishment and the influence of those attitudes on the state's use of the death penalty. He surveys the Christian Church's strong support for capital punishment throughout most of its history, along with recent expressions of opposition from many Protestant, Catholic, and Jewish groups. Despite this recent abolitionist sentiment from an array of religious institutions, Professor Douglas notes a divergence of opinion between the "pulpit and the pew" as the laity continues to support the death penalty in large numbers. Professor Douglas accounts for this divergence by …

Where's The Beef?, Stanley Fish

Stanley Fish

A key concern of the papers written for this conference is the relationship between religious beliefs and secular beliefs of the kind that carry with them deep ethical obligations. Are these systems of belief essentially the same or are they different in important respects? The question is typically posed abstractly, and I thought it might be useful to have before us an example of religious belief and the demands that attend it. The example is taken from the beginning of John Bunyan’s The Pilgrim’s Progress. Christian, Bunyan’s protagonist, has suddenly become aware that his salvation is imperiled, and he is …

Don’T Lock Trump Up, Just Because Mueller Said You Can, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Establishment Of Religion Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Scotus Gerrymandering Case: Roberts Didn’T Defend Constitutional Democracy, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Comments On Steven Smith, Pagans And Christians In The City, Michael P. Moreland

Journal of Catholic Legal Studies

(Excerpt)

One of the most interesting aspects of this generally very interesting book was the discussion of sexual morality in paganism and Christianity. I have thought for a while that much of the contemporary debate about religious freedom is not about religious freedom in a generic sense but instead about religious freedom in a very particular context—sex. But that is a descriptive point—much more challenging is trying to give an account of why sex should have come to be (or as Smith’s argument implies, has long been) the battlefield on which much of the fight over religious freedom takes place. …

Dialoguing With Paganism, Helen M. Alvare

Journal of Catholic Legal Studies

(Excerpt)

Professor Smith’s comparison of ancient and contemporary beliefs in the “immanent sacred” works well. By this I mean that it’s quite plausible, and accounts for quite a few contemporary claims, disputes, and movements in both law and culture.

The book’s implications for law are likely too complicated to allow for anything like its straightforward application in today’s religion clause contests. Still, it might indirectly assist traditional believers to lower the temperature of, or even avoid, such contests. I develop each of these points below.

Augustine's "Two Cities" And Steven Smith's Pagans And Christians, Brian Dunkle, S.J.

Journal of Catholic Legal Studies

(Excerpt)

Although there are many modern voices juxtaposing pagans and Christians, I want to focus on an ancient source, Augustine of Hippo’s City of God (against the Pagans), which is one of the inspirations for Smith’s title. While the bishop of Hippo shows up occasionally in Smith’s account—indeed, his conversion is central to Chapter Five, Looking beyond the World: The Christian Revolution—Augustine’s description of the “two cities,” Babylon and Jerusalem, makes only a brief appearance. So as a scholar of both historical theology and Augustine (and as someone innocent of constitutional legal theory), I suggest that the City …

A Tale Of Two Cities: Religious Freedom In A Secular Age, Anna Su

Journal of Catholic Legal Studies

(Excerpt)

Understanding the terms under which Christianity and paganism could coexist in antiquity thus gives us a semblance of an answer to the question posed early on in the book. In ancient Rome, Pliny asks why Christians were being subjected to legal sanctions, while in our present time, Douglas Laycock asks why people—referring to same-sex couples suing wedding photographers, florists, and bakers who object on religious grounds to their union—would insist on these services they neither need nor want? The paganism of ancient Rome welcomed a plurality of cults and religions but only up to a certain point. When Christians …

Many Cities, One Nation: A Response To Steven Smith's Pagans And Christians In The City, Bruce P. Frohnen

Journal of Catholic Legal Studies

(Excerpt)

In his treatment of contemporary legal issues and, more deeply, his analysis of the manner in which changing religious assumptions and goals shape the culture from which law naturally grows, Smith has provided both a strong critique of contemporary “secular” pieties and an explanation for the culture wars so often derided or minimized by those most determined to deconstruct traditional culture. Still, I would argue that Smith’s wide-ranging, radical rethinking of contemporary social disorder does not go far enough. As Smith’s discussion of contemporary judicial treatment of social structure makes clear, today’s legal elites are at heart totalitarian in …

Christians And Pagans, Abner S. Greene

Journal of Catholic Legal Studies

(Excerpt)

In this response paper, I will offer four thoughts. First, I’m not sure the contemporary picture is best described as pagans vs. Christians. Second, I question the subtle move throughout the book from a generative/creative understanding of God to seeing God as normative, as supervening in human affairs regarding right and wrong conduct. Third, I push back on the notion that theistic belief (or, perhaps, the very existence of God) is necessary to ground meaning and value. Fourth, I discuss some modern-day U.S. constitutional issues that Smith discusses as examples of pagans persecuting Christians: (a) state-sponsored religious symbols, (b) …

Ironies In The City: Reflections On Steven Smith's Pagans And Christians In The City, Perry Dane

Journal of Catholic Legal Studies

(Excerpt)

Nevertheless, some deep ironies and puzzles run through the text of Pagans and Christians. Smith is too careful and subtle to ignore these undercurrents entirely. But it will be worth bringing them to the surface, not only for their own sake but because they might help suggest an alternative to Smith’s most rough-edged claims. My aim in this essay is not merely to nitpick. Any work as magisterial as Smith’s book will generalize and elide along the way. But I do hope by the accumulation of details to suggest a fundamental worry that goes to the most charged …

Interview With Khaled Beydoun, Khaled Beydoun, Nina Mozeihem, Samuel Bagenstos

University of Michigan Journal of Law Reform

The following is a transcription of an interview with Professor Khaled Beydoun, conducted at the University of Michigan Law School on March 15, 2019. The transcript has been lightly edited for clarity.

Legislative Prayer: Historical Tradition And Contemporary Issues, Chad West

Utah Law Review

The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion . . . .”1 There is a great deal of confusion among scholars, lower federal courts, and the Justices of the Supreme Court over appropriate Establishment Clause principles,2 but it is at least clear that the government “may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith, or tends to do so.”3 It has long been settled that state and local legislative bodies may, …