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Articles 1 - 30 of 165
Full-Text Articles in Law
Establishment Clause Mythology, Peter J. Smith, Robert W. Tuttle
Establishment Clause Mythology, Peter J. Smith, Robert W. Tuttle
GW Law Faculty Publications & Other Works
For 75 years, the Supreme Court’s opinions have reflected stark conflict between two competing narratives about the Establishment Clause’s meaning and legal foundation. One view holds that the Constitution requires a separation between church and state. The other view asserts that the government may promote religion. The former view—which we call separationism—is based on the framers’ understanding of the nature of civil government, and on a political theory of liberal pluralism. The latter view—which we call religionism—is usually grounded in tradition, and principally has its roots in the Second Great Awakening of the nineteenth century and its urge to transform …
No Aid, No Agency, Steven K. Green
No Aid, No Agency, Steven K. Green
William & Mary Bill of Rights Journal
Over the past three decades, members of the Supreme Court have demonstrated increasing hostility to the Establishment Clause’s rule against funding religion, first enunciated in 1947. Over the years, the Court has not only narrowed the rule to allow for government aid to flow to religious schools and faith-based charities, it has more recently declared that to enforce that rule may amount to discrimination against religion. This Article argues that a key reason for the decline in the no-aid principle rests on the weakness of the rationale underlying that rule: that funding of religion coerces the conscience of taxpayers. The …
The Supreme Court And Private Schools: An Update, Neal Devins
The Supreme Court And Private Schools: An Update, Neal Devins
Neal E. Devins
No abstract provided.
Social Meaning And School Vouchers, Neal Devins
Religious Symbols And The Establishment Clause, Neal Devins
Religious Symbols And The Establishment Clause, Neal Devins
Neal E. Devins
No abstract provided.
Coercion And Choice Under The Establishment Clause, Cynthia V. Ward
Coercion And Choice Under The Establishment Clause, Cynthia V. Ward
Cynthia V. Ward
In recent Establishment Clause cases the Supreme Court has found nondenominational, state-sponsored prayers unconstitutionally "coercive" -although attendance at the events featuring the prayer was not required by the state; religious dissenters were free to choose not to say the challenged prayers; and dissenters who so chose, or who chose not to attend the events, suffered no state-enforced sanction. Part I of this Article lays out the historical background that gave rise to the coercion test, traces the development of that test in the Court's case law, and isolates the core elements in the vision of coercion that animates the test. …
Religious Tests And The British Monarchy, Nathan B. Oman
Religious Tests And The British Monarchy, Nathan B. Oman
Nathan B. Oman
No abstract provided.
The Story Of A Forgotten Battle, Nathan B. Oman
The Need For A Law Of Church And Market, Nathan B. Oman
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 …
Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese
Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese
Alan J. Meese
No abstract provided.
Zelman V. Simmons-Harris, Neal Devins
Inconsistent Standards Of Review In Last Term's Establishment Clause Cases, Neal Devins
Inconsistent Standards Of Review In Last Term's Establishment Clause Cases, Neal Devins
Neal E. Devins
No abstract provided.
Fundamentalist Schools And The Law, Neal Devins
Fundamentalist Christian Educators V. State: An Inevitable Compromise, Neal Devins
Fundamentalist Christian Educators V. State: An Inevitable Compromise, Neal Devins
Neal E. Devins
No abstract provided.
School Vouchers: Inviting The Public Into The Religious Square, James G. Dwyer
School Vouchers: Inviting The Public Into The Religious Square, James G. Dwyer
James G. Dwyer
No abstract provided.
Funding Religion In A Post-Zelman World, James G. Dwyer
Funding Religion In A Post-Zelman World, James G. Dwyer
James G. Dwyer
No abstract provided.
Symposium Introduction: The Religion Clauses In The 21st Century, William P. Marshall, Vivian E. Hamilton, John E. Taylor
Symposium Introduction: The Religion Clauses In The 21st Century, William P. Marshall, Vivian E. Hamilton, John E. Taylor
Vivian E. Hamilton
No abstract provided.
Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton
Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton
Vivian E. Hamilton
No abstract provided.
Introduction: Perspectives On Religious Fundamentalism And Families In The U.S., Vivian E. Hamilton
Introduction: Perspectives On Religious Fundamentalism And Families In The U.S., Vivian E. Hamilton
Vivian E. Hamilton
No abstract provided.
Bob Jones University V. United States 461 U.S. 574 (1983), Neal Devins
Bob Jones University V. United States 461 U.S. 574 (1983), Neal Devins
Neal E. Devins
No abstract provided.
Bob Jones University V. United States 461 U.S. 574 (1983), Neal Devins
Bob Jones University V. United States 461 U.S. 574 (1983), Neal Devins
Neal E. Devins
No abstract provided.
Religion In The Public Square, Davison M. Douglas
Religion In The Public Square, Davison M. Douglas
Davison M. Douglas
No abstract provided.
Book Review, Richard Garnett
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."
An Illiberal Union, Sonu Bedi
An Illiberal Union, Sonu Bedi
William & Mary Bill of Rights Journal
This Article breaks new ground by applying the philosophical framework of liberal neutrality (most famously articulated by John Rawls) to the United States Supreme Court’s jurisprudence on marriage. At first blush, the Court’s decision in Obergefell v. Hodges—the culmination of marriage rights—seems to affirm a central principle of liberalism, namely equal access to marriage regardless of sexual orientation. Gays and lesbians can finally take part in an institution that celebrates the union of two committed individuals. But perversely, in its attempt to expand access to marriage, the Court has simultaneously entrenched values that are antithetical to the basic tenants …
Not Today, Satan: Re-Examining Viewpoint Discrimination In The Limited Public Forum, Daniel Cutler
Not Today, Satan: Re-Examining Viewpoint Discrimination In The Limited Public Forum, Daniel Cutler
William & Mary Bill of Rights Journal
No abstract provided.
The Schofield/Gunner Decisions And Episcopal Church Property-Splitting Litigation: Considering Proposed Improvements To The Litigation Process And The Neutral Principles Of Law Doctrine, Ten Years On, Timothy D. Watson
William & Mary Business Law Review
In recent years, the Episcopal Church in the United States has seen a spate of parishes leaving the Church. Many of these departing parishes have attempted to take property with them as they leave and continue to operate independently or realign themselves with a different denomination. The Episcopal Church maintains that this property is held by the parishes on behalf of the national Church, and has generally been successful in obtaining a return of the property through legal action. In deciding these suits, state courts have skirted carefully around the contours of ecclesiastical questions; many state courts, following the Supreme …
The Light Of Nature: John Locke, Natural Rights, And The Origins Of American Religious Liberty, Steven J. Heyman
The Light Of Nature: John Locke, Natural Rights, And The Origins Of American Religious Liberty, Steven J. Heyman
Marquette Law Review
This Article explores John Locke’s theory of religious liberty, which deeply influenced the adoption of the First Amendment and the first state bills of rights. Locke sharply criticized the religious and political order of Restoration England—a regime in which the king claimed to hold absolute power by divine right and in which individuals were required by law to conform to the established church.
In opposition to this regime, Locke developed a powerful theory of human beings as rational creatures who were entitled to think for themselves, to direct their own actions, and to pursue their own happiness within the bounds …
Why Justice Breyer Was Wrong In Van Orden V. Perry, Erwin Chemerinsky
Why Justice Breyer Was Wrong In Van Orden V. Perry, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Why Church And State Should Be Separate, Erwin Chemerinsky
Why Church And State Should Be Separate, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Should ‘Public Reason’ Developed Under Us Establishment Clause Jurisprudence Apply To Australia?, Anthony K. Thompson
Should ‘Public Reason’ Developed Under Us Establishment Clause Jurisprudence Apply To Australia?, Anthony K. Thompson
The University of Notre Dame Australia Law Review
John Rawls’ idea of public reason holds that comprehensive doctrines including religion should not be allowed a voice in the public square. Such ideas prevent society achieving that ‘overlapping consensus’ which is said to be a requirement for enduring peace and progress. However, the suggestion that some ideas should be excluded from public debate is anti-democratic. This article reviews Rawls’ idea of public reason’ against its US legal context and suggests it was a response to US Supreme Court decisions concerning their First Amendment. Though our framers copied most of that clause into the Australian Constitution, the High Court has …