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Full-Text Articles in Religion Law
Locating Free-Exercise Most-Favored-Nation-Status (Mfn) Reasoning In Constitutional Context, Alan E. Brownstein, Vikram David Amar
Locating Free-Exercise Most-Favored-Nation-Status (Mfn) Reasoning In Constitutional Context, Alan E. Brownstein, Vikram David Amar
Loyola University Chicago Law Journal
This Article examines the theoretical and doctrinal origins and consequences of a potentially game-changing approach to processing claims brought under the Free Exercise Clause of the First Amendment. Since 1990, and the decision in Employment Division v. Smith, the Court has read that Clause not to require accommodation of religious activity via exemptions from religion-neutral and generally applicable laws and regulations. What the Free Exercise Clause does prohibit, according to Smith, is government action targeting or discriminating against religion. But the Court’s decision a year ago in Tandon v. Newsom provides some powerful evidence about how this doctrine …
The Establishment Clause, Civil Rights, And The Accomodationist Path Forward, Lisa Shaw Roy
The Establishment Clause, Civil Rights, And The Accomodationist Path Forward, Lisa Shaw Roy
Loyola University Chicago Law Journal
The U.S. Supreme Court’s First Amendment Religion Clause doctrine is undergoing a transition between the Court’s older, strict separationist decisions and its current accommodationist approach. This shift can be seen in the Court’s most recent Establishment and Free Exercise Clause decisions, and in particular, in its unanimous Free Speech Clause decision in Shurtleff v. City of Boston, a case which found that the challenger, Harold Shurtleff, had a First Amendment right to raise a flag with a cross on a city flagpole. In many ways, Shurtleff exemplifies the Court’s incremental movement toward an accommodationist Establishment Clause doctrine, and this …
Constructing The Establishment Clause, Vincent Phillip Muñoz, Kate Hardiman Rhodes
Constructing The Establishment Clause, Vincent Phillip Muñoz, Kate Hardiman Rhodes
Loyola University Chicago Law Journal
In this Article, we attempt to document how the history of the Supreme Court’s Establishment Clause jurisprudence is a history of constructionism, much of it—though not all—originalist in flavor. We use “construction” in a technical sense and in contradistinction to “interpretation.” Construction is the act of importing meaning into the constitutional text. To document and explain how leading Supreme Court justices have engaged in originalist constructionism, we employ the interpretation-construction distinction as well as two additional analytical concepts recently discussed by leading legal scholars: Sam Bray’s recovery of “the mischief rule” and Jack Balkin’s textual typology of principles, standards, and …
Is Church Autonomy Jurisdictional?, Lael Weinberger
Is Church Autonomy Jurisdictional?, Lael Weinberger
Loyola University Chicago Law Journal
The First Amendment’s religion clauses create what courts have called “church autonomy doctrine,” protecting the internal self-governance of religious institutions. But courts are divided as to whether this doctrine is simply an affirmative defense for religious institutions or a jurisdictional limitation on courts’ ability to adjudicate internal religious matters. Scholars, meanwhile, have long debated whether church autonomy is jurisdictional at a higher level of abstraction, speaking of jurisdiction as a concept of authority rather than a technical term for civil procedure. This Article engages this multilevel debate with an argument for unbundling. First, it urges unbundling conceptual jurisdiction from judicial …
Freedom Of Speech, Religious Harassment Law, And Religious Accomodation Law, Eugene Volokh
Freedom Of Speech, Religious Harassment Law, And Religious Accomodation Law, Eugene Volokh
Loyola University Chicago Law Journal
No abstract provided.
The Constitutional Flaws In The New Illinois Religious Freedom Restoration Act: Why Rfras Don't Work, Mary Jean Dolan
The Constitutional Flaws In The New Illinois Religious Freedom Restoration Act: Why Rfras Don't Work, Mary Jean Dolan
Loyola University Chicago Law Journal
No abstract provided.