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Articles 1 - 30 of 33
Full-Text Articles in Religion Law
Between Description And Prescription: Law, Wittgenstein, And Constitutional Faith, Gregory Brazeal
Between Description And Prescription: Law, Wittgenstein, And Constitutional Faith, Gregory Brazeal
West Virginia Law Review
The occasions on which ajudge or legal scholar has peered into the depths of the Constitution and found, to her surprise, that the Constitutionrequiresthe opposite ofher ideologicalpreferences, are extremely rare. Yetjudges andscholarscontinuetopresenttheirconclusionsastheproduct ofideologicallyneutralreasoning,while often criticizingthe ideologicalbiasin thereasoningoftheiropponents.A Wittgensteinianperspectiveonthenatureof legaldiscoursecanshed lighton thispuzzlinglypersistentstateofaffairs. Legal discourse, includingconstitutionalargument, is partly defined by the blending ofdescriptive reasoningabout what the law is with prescriptivereasoningabout what the law ought to be. To reach a legal conclusion based on a blend of descriptiveandprescriptivereasoning,andtophrasethis conclusion aspurely descriptive, as legal actors habitually do, is not to violate the rules of legal discourse, but to abide by them. Taking this conception …
An Examination Of The Instruction Of Religion Clause Issues In Massachusetts Teacher Education Programs, Matthew E. Henry
An Examination Of The Instruction Of Religion Clause Issues In Massachusetts Teacher Education Programs, Matthew E. Henry
Educational Studies Dissertations
The prevailing research, as well as reported complaints of academic, civic, personal, and social harm, indicates that public school teachers do not exhibit the professional knowledge, skills, and attitudes grounded in the religion clauses of the U.S. Constitution. This study investigated how TEPs in the Commonwealth of Massachusetts document their instruction of preservice teachers on religion clause issues as they apply to grade 6-12 content area pedagogy, curriculum, and professional ethos. The institutional documents presented to preservice teachers were collected from four teacher education programs in the Commonwealth. An evaluation tool— synthesized from the leading scholarship and research on the …
Church Liability For Clergy Sexual Abuse: Have Time And Events Overthrown Swanson V. Roman Catholic Bishop Of Portland?, Sonia J. Buck
Church Liability For Clergy Sexual Abuse: Have Time And Events Overthrown Swanson V. Roman Catholic Bishop Of Portland?, Sonia J. Buck
Maine Law Review
In Swanson v. Roman Catholic Bishop of Portland, Albert and Ruth Swanson sued their former pastor, Father Maurice Morin, after the couple's marriage counseling sessions with Father Morin led to a sexual relationship between Father Morin and Mrs. Swanson. The Swansons brought claims against Father Morin for negligent and intentional infliction of emotional distress and negligent pastoral counseling. They also sued the Roman Catholic Bishop of Portland, a corporation, and Bishop Joseph Gerry in his personal capacity (collectively referred to as the “Church”) for negligence in selecting, training, and supervising Father Morin. The Maine Superior Court dismissed the claims against …
Education Funding In Maine In Light Of Zelman And Locke: Too Much Play In The Joints?, Sarah M. Lavigne
Education Funding In Maine In Light Of Zelman And Locke: Too Much Play In The Joints?, Sarah M. Lavigne
Maine Law Review
The United States Supreme Court has struggled with the countervailing directives of the Free Exercise Clause and the Establishment Clause for decades. One area in which this battle has been particularly contentious is the issue of public funding of religious schools. On one hand, opponents argue that such funding is an impermissible co-mingling of church and state, thereby violating the Establishment Clause. Meanwhile, proponents of public funding of religious schools argue that, to withhold funding from religious schools would place a burden on those wishing to send their children to religious schools, thereby impermissibly preventing individuals from practicing their faith …
Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel
Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel
Life of the Law School (1993- )
No abstract provided.
Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel
Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel
Law School Blogs
No abstract provided.
God's Green Earth? The Environmental Impacts Of Religious Land Use, Kellen Zale
God's Green Earth? The Environmental Impacts Of Religious Land Use, Kellen Zale
Maine Law Review
Boulder County, Colorado has been at the forefront of the environmental movement for decades. Starting with its citizens’ vote in 1967 to implement a tax specifically to preserve open space, the city has long been known for its progressive environmental policies. At the center of Boulder’s environmental protection efforts is a comprehensive system of land use regulations designed to mitigate the slow chokehold of ever-encroaching development on wetlands and open space, on groundwater and soils, and on wildlife and native species. Numerous communities across the country have followed Boulder’s much-praised model and enacted their own environmental zoning laws to protect …
Memorandum, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Memorandum, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Research Data
This legal Memorandum on the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and written by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The Memorandum is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).
4 p.
"The legislative history primarily identifies two issues that SB08-200 was designed to resolve: (1) the need for dignity and access to justice for LGBT people and …
Master File, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Master File, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen
Research Data
This Master File of the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and compiled by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The SB08-200 Master File is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).
449 p.
Paliotta V. State Dep’T Of Corrections, 133 Nev. Adv. Op. 58 (Sept. 14, 2017), Anna Sichting
Paliotta V. State Dep’T Of Corrections, 133 Nev. Adv. Op. 58 (Sept. 14, 2017), Anna Sichting
Nevada Supreme Court Summaries
The Court determined it must consider the sincere religious beliefs of the individual when evaluating claims under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA). It is improper to evaluate those claims under the centrality test, which attempts to determine if the individual’s beliefs are central to a tenant of the religion in question. Once the sincere belief is shown, the courts must then fully examine the remaining considerations under the Free Exercise Clause and the RLUIPA.
Eclecticism, Nelson Tebbe
Eclecticism, Nelson Tebbe
Nelson Tebbe
This short piece comments on Kent Greenawalt's new book, Religion and the Constitution: Establishment and Fairness. It argues that although Greenawalt's eclectic approach carries certain obvious costs, his theory cannot be evaluated without comparing its advantages and disadvantages to those of its competitors. It concludes by giving some sense of what that comparative calculus might look like.
Smith In Theory And Practice, Nelson Tebbe
Smith In Theory And Practice, Nelson Tebbe
Nelson Tebbe
Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and …
Nonbelievers, Nelson Tebbe
Nonbelievers, Nelson Tebbe
Nelson Tebbe
How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do. …
Government Nonendorsement, Nelson Tebbe
Government Nonendorsement, Nelson Tebbe
Nelson Tebbe
What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …
Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe
Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe
Nelson Tebbe
No abstract provided.
Excluding Religion, Nelson Tebbe
Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi Liu
Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi Liu
Montana Law Review
Applying Strict Scrutiny: An Empirical Analysis of Free Exercise Cases
Catholic Institutions In Court: The Religion Clauses And Political-Legal Compromise, Angela C. Carmella
Catholic Institutions In Court: The Religion Clauses And Political-Legal Compromise, Angela C. Carmella
West Virginia Law Review
No abstract provided.
Who Decides? The Title Ix Religious Exemption And Administrative Authority, Elise S. Faust
Who Decides? The Title Ix Religious Exemption And Administrative Authority, Elise S. Faust
BYU Law Review
The Title IX religious exemption demonstrates how statutory religious exemptions can help further social change by neutralizing potential conflict with religious dissenters. Part of the reason for its success is that it is narrowly constructed and automatically applies to qualifying institutions. However, the regulations contradict the statutory text by potentially giving the Department of Education discretion to grant or deny exemptions. Were the Department to fully exercise this power, its actions would conflict with both the language of the statute and the Constitution. The Department of Education’s recent scrutiny of the “controlled by” language of the exemption provides an example …
A Fixture On A Changing Court: Justice Stevens And The Establishment Clause, Erwin Chemerinsky
A Fixture On A Changing Court: Justice Stevens And The Establishment Clause, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Why Religious Freedom? Why The Religiously Committed, The Religiously Indifferent, And Those Hostile To Religion Should Care, Brett G. Scharffs
Why Religious Freedom? Why The Religiously Committed, The Religiously Indifferent, And Those Hostile To Religion Should Care, Brett G. Scharffs
BYU Law Review
No abstract provided.
Newsroom: Donald Trump Vs. Roger Williams 05-09-2017, David Logan
Newsroom: Donald Trump Vs. Roger Williams 05-09-2017, David Logan
Life of the Law School (1993- )
No abstract provided.
The Tension Between Equal Protection And Religious Freedom, John M. Greabe
The Tension Between Equal Protection And Religious Freedom, John M. Greabe
Law Faculty Scholarship
[Excerpt] "The Constitution did not become our basic law at a single point in time. We ratified its first seven articles in 1788 but have since amended it 27 times. Many of these amendments memorialize fundamental shifts in values. Thus, it should come as no surprise to learn that the Constitution is not an internally consistent document."
…
"Other constitutional provisions -- even provisions that were simultaneously enacted -- protect freedoms that can come into conflict with one another. The First Amendment, for example, promises both freedom from governmental endorsement of religion and freedom from governmental interference with religious practice. …
Global Issues In Freedom Of Speech And Religion: Cases And Materials, Leslie Gielow Jacobs, Alan Brownstein
Global Issues In Freedom Of Speech And Religion: Cases And Materials, Leslie Gielow Jacobs, Alan Brownstein
Leslie Gielow Jacobs
Brownstein and Jacobs's Global Issues in Freedom of Speech and Religion: Cases and Materials is a companion volume to existing materials. Designed to assist professors in introducing issues of international and comparative law, this title is ideal for use in educational courses that address:
- The First Amendment
- Law and religion
- Individual rights
- Other topics dealing with free speech and religious liberty
In order to make companion materials understandable and accessible to students as well as to professors who have not taught the materials before, this title:
- Includes case excerpts, helpful background materials, and notes
- Is set out in a structure …
Why Some Religious Accommodations For Mandatory Vaccinations Violate The Establishment Clause, Hillel Y. Levin
Why Some Religious Accommodations For Mandatory Vaccinations Violate The Establishment Clause, Hillel Y. Levin
Scholarly Works
All states require parents to inoculate their children against deadly diseases prior to enrolling them in public schools, but the vast majority of states also allow parents to opt out on religious grounds. This religious accommodation imposes potentially grave costs on the children of non-vaccinating parents and on those who cannot be immunized. The Establishment Clause prohibits religious accommodations that impose such costs on third parties in some cases, but not in all. This presents a difficult line-drawing problem. The Supreme Court has offered little guidance, and scholars are divided.
This Article addresses the problem of religious accommodations that impose …
The Free Exercise Of Religious Identity, Lauren Sudeall
The Free Exercise Of Religious Identity, Lauren Sudeall
Vanderbilt Law School Faculty Publications
In recent years, a particular strain of argument has arisen in response to decisions by courts or the government to extend certain rights to others. Grounded in religious freedom, these arguments suggest that individuals have a right to operate businesses or conduct their professional roles in a manner that conforms to their religious identity. For example, as courts and legislatures have extended the right to marry to same-sex couples, court clerks have refused to issue marriage certificates to such couples, claiming that to do so would violate their religious beliefs. Similarly, corporations have refused, for reasons grounded in religious identity, …
Adjudicating Religious Sincerity, Nathan Chapman
Adjudicating Religious Sincerity, Nathan Chapman
Scholarly Works
Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility …
The Free Exercise Of Religious Identity, Lauren Sudeall Lucas
The Free Exercise Of Religious Identity, Lauren Sudeall Lucas
Faculty Publications By Year
In recent years, a particular strain of argument has arisen in response to decisions by courts or the government to extend certain rights to others. Grounded in religious freedom, these arguments suggest that individuals have a right to operate businesses or conduct their professional roles in a manner that conforms to their religious identity. For example, as courts and legislatures have extended the right to marry to same-sex couples, court clerks have refused to issue marriage certificates to such couples, claiming that to do so would violate their religious beliefs. Similarly, corporations have refused, for reasons grounded in religious identity, …
Constitutional Law: If These Walls Could Talk: Giving Undue Deference To Religious Actors By Expanding The Ecclesiastical Abstention Doctrine—Pfeil V. St. Matthews Evangelical Lutheran Church Of Unaltered Augsburg Confession, Jeremy D.F. Krahn
Mitchell Hamline Law Review
No abstract provided.
Women And The Making Of The Tunisian Constitution, Rangita De Silva De Alwis, Anware Mnasri, Estee Ward
Women And The Making Of The Tunisian Constitution, Rangita De Silva De Alwis, Anware Mnasri, Estee Ward
All Faculty Scholarship
This article attempts to glean from field interviews and secondary sources some of the sociopolitical complexities that underlay women’s engagement in Tunisia’s 2011-14 constitution-making process. Elucidating such complexities can provide further insight into how women’s engagement impacted the substance and enforceability of the constitution’s final text. We argue that, in spite of longstanding roadblocks to implement and enforce constitutional guarantees, the greater involvement of Tunisian women in the constitution drafting process did make a difference in the final gender provisions of Tunisia’s constitution. Although not all recommendations were adopted, Tunisian women were able to use an autochthonous process to edify …