First Amendment Commons^™

Section 1: Moot Court, Locke V. Davey, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Proselytizers, Pamphleteers, Pests, And Other First Amendment Champions: Watchtower Bible And Tract Society Of New York, Inc. V. Village Of Stratton, Kathryn Lusty

Brigham Young University Journal of Public Law

No abstract provided.

The Serpentine Wall Of Separation, John Witte Jr.

Michigan Law Review

The task of separating the secular from the religious in education is one of magnitude, intricacy, and delicacy, Justice Jackson wrote, concurring in McCollum v. Board of Education, the Supreme Court's first religion in public schools case. "To lay down a sweeping constitutional doctrine" of absolute separation of church and state "is to decree a uniform . . . unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes." If we persist in this experiment, Justice Jackson warned his brethren, "we are …

Liberalism And The Establishment Clause, Steven H. Shiffrin

Cornell Law Faculty Publications

Every political theory tolerates some things and not others. Every political theory promotes a particular kind of person even if it denies it is doing so. But the best liberalism does not confine itself to promoting a Rawlsian-tolerant citizen. Liberalism, like conservatism, has greater ambitions in the socialization of the young. The best liberalism, a neo-Millian liberalism, promotes a creative, independent, autonomous, engaged citizen and human being who works with others to make for a better society and speaks out against unjust customs, habits, institutions, traditions, hierarchies, and authorities.

Although government may promote a particular conception of the good life, …

The "Blaine" Debate: Must States Fund Religious Schools?, Laura S. Underkuffler

Cornell Law Faculty Publications

In Zelman v. Simmons-Harris, the United States Supreme Court held-by a vote of 5 to 4-that the funding of religious schools with taxpayer money through voucher programs does not violate the Establishment Clause of the United States Constitution. Emboldened by this success, voucher proponents now attack state constitutional provisions (often called "Blaine Amendments") that prohibit taxpayer funding of religious schools. These state provisions, which may stand in the way of religious-school voucher programs, are attacked as violative of the federal Constitution, rooted in anti-religious bias, or otherwise illegal or unwise.

It is my view that efforts to force states …

In The Absence Of Title: Responding To Federal Ownership In Sacred Sites Cases, Kristen A. Carpenter

Publications

This paper examines the challenge of protecting American Indian sacred sites located on federal public lands. Many have addressed this issue in the religious freedoms context, but I believe the problem is just as much about property law. The Supreme Court's decision in Lyng v. Northwest Indian Cemetery Protective Association, for example, would appear to suggest that federal ownership of certain sacred sites trumps tribal free exercise clause claims regarding those sites. This holding corresponds with a classic model in which "[p]roperty is about rights over things and the people who have those rights are called owners." However, a …

Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler

Faculty Scholarship

The controversy over teaching evolution in public schools is once again hot news. Ever since the Supreme Court decided in 1987 that Louisiana could not constitutionally require teachers to give equal time to teaching creation science and evolution, critics of evolution have adopted a variety of new strategies to change the way in which public schools present the subject to their students. These strategies have included teaching evolution as a "theory" rather than as a fact, disclaiming the truth of evolutionary theory, teaching arguments against evolution, teaching the allegedly nontheistic theory of intelligent design instead of creationism, removing evolution from …

The Liberal Polity And Illiberalism In Religious Traditions, Paul E. Salamanca

Law Faculty Scholarly Articles

It is in the nature of religious traditions to be somewhat illiberal. Indeed, a religion that does not require its adherents to affirm at least some belief is probably a logical impossibility. Christians, for example, must believe something about the nature of Christ. Even Unitarians, who advocate tolerance of all religions, must affirm a belief in tolerance.

Recently, and largely because of the events of September 11, 2001, enhanced attention has been paid to certain potentially illiberal aspects of Islam in the United States. The journalist Daniel Pipes, for example, has written about certain Moslem Americans who, according to his …