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Full-Text Articles in Religion Law
Panel Discussion At "Signs Of The Times: The First Amendment And Religious Symbolism", Carl H. Esbeck
Panel Discussion At "Signs Of The Times: The First Amendment And Religious Symbolism", Carl H. Esbeck
Faculty Publications
No abstract provided.
When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck
When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck
Faculty Publications
This article sets forth five rules with respect to what government may do to accommodate religious practice and five rules with respect to what government may not do. As it turns out the Supreme Court has said that most religious accommodations are left to the broad discretion of legislators and public officials. So long as the object of the accommodation is to protect or expand religious freedom, as distinct from expanding religion, the accommodation will be permitted.
Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck
Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck
Faculty Publications
The purpose of the Establishment Clause is not to safeguard individual religious rights. That is the role of the Free Exercise Clause, indeed its singular role. The purpose of the Establishment Clause, rather, is as a structural restraint on governmental power. Because of its structural character, the task of the Establishment Clause is to limit government from legislating or otherwise acting on any matter "respecting an establishment of religion." The powers that fall within the scope of the foregoing clause (denied to government, hence within the sole province of religion) and the powers outside this clause (hence, authority vested in …
A Restatement Of The Supreme Court's Law Of Religious Freedom: Coherence, Conflict Or Chaos?, Carl H. Esbeck
A Restatement Of The Supreme Court's Law Of Religious Freedom: Coherence, Conflict Or Chaos?, Carl H. Esbeck
Faculty Publications
Religious freedom as guaranteed in the First Amendment makes religious pluralism more likely, while pluralism makes the maintenance of religious freedom as a fundamental civil right more necessary. It seems there is a limit, however, to the expansion of America's religious pluralism that, when exceeded, shatters cultural consensus thus rendering impossible the political and civil discourse necessary to sustain democratic institutions.1 This follows because pluralism promises freedom but exacts a price in civic disunity and moral confusion. The question thereby resolves itself into just how a religiously diverse people are to live together, despite their deepest differences, while sharing in …
Government Regulation Of Religiously Based Social Services: The First Amendment Considerations, Carl H. Esbeck
Government Regulation Of Religiously Based Social Services: The First Amendment Considerations, Carl H. Esbeck
Faculty Publications
A daunting welter of variables confronts anyone who sets out to systematize the First Amendment's effect on the government's role in regulating social services operated by religious organizations. The task is further complicated because the regulations in question often were promulgated as a consequence of the monitoring that inevitably accompanies government spending on private-sector welfare programs. The most suitable methodology should take into account: 1) the nature of the organizations that are the object of the government's regulation or program of aid; 2) the interrelationship between government and religious organizations that results from the regulation or aid; and 3) the …
The Lemon Test: Should It Be Retained, Reformulated Or Rejected?, Carl H. Esbeck
The Lemon Test: Should It Be Retained, Reformulated Or Rejected?, Carl H. Esbeck
Faculty Publications
This essay addresses the Supreme Court's three-part establishment clause test originally set down in Lemon v. Kurtzman. Part I concerns the manner in which the Lemon test has substantially evolved. Part II explores what the evolved test has to offer by way of solving the seemingly conflicting duties not to inhibit free speech and political rights, while at the same time refraining from passing laws "respecting an establishment of religion." Finally, Part III addresses some of the proposals to supplant Lemon altogether.
First Freedom: Religion And The Bill Of Rights, Carl H. Esbeck
First Freedom: Religion And The Bill Of Rights, Carl H. Esbeck
Faculty Publications
This volume is a collection of seven papers delivered at a symposium assembled in April 1989 upon the occasion, almost two hundred years hence, of the passage of the Bill of Rights by the First Congress. The unifying theme is stated to be the historical context of both Religion Clauses in the First Amendment, but the authors are driven primarily by Establishment Clause concerns. The Thrust of the essays deal with the originalism advanced during the years of Reagan Administration, and nonpreferentialism comes in for particular criticism, both pejoratively characterized as that "growing clamor".
Toward A General Theory Of Church-State Relations And The First Amendment, Carl H. Esbeck
Toward A General Theory Of Church-State Relations And The First Amendment, Carl H. Esbeck
Faculty Publications
Although government intervention in religious affairs is a new and understandably worrisome experience for many American churches, history instructs us that the confrontation is not novel. We can find some comfort in the fact that this double wrestle of state with church and state with individual believers is a perennial match. After all, it has been nearly sixty years since a brutish measure in Oregon making parochial school education unlawful had to be sidelined by the United States Supreme Court in Pierce v. Society of Sisters.' Over forty-five years ago the Supreme Court decided Lovell v. City of Griffin, snuffing …
Establishment Clause Limits On Governmental Interference With Religious Organizations, Carl H. Esbeck
Establishment Clause Limits On Governmental Interference With Religious Organizations, Carl H. Esbeck
Faculty Publications
In this article it will be argued that the establishment clause, properly viewed, functions as a structural provision regimenting the nature and degree of involvement between government and religious associations." The degree of involvement should be a limited one, although it is clear that the interrelationship need not nor cannot be eliminated altogether. Although the degree of desired separation has proven to be a continuing controversy, the goal of separation is not so divisive. The aim of separation of church and government is for each to give the other sufficient breathing space. The ordering principle is reciprocity in which "both …