Religion Law Commons^™

Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn

Law Faculty Publications

On September 30, 2022, several members of the faculty of the Thomas R. Kline School of Law of Duquesne University presented a Continuing Legal Education program, New Supreme Court Cases: Duquesne Law Faculty Explains, reviewing these developments. Duquesne Law Review graciously invited the faculty panel to contribute their analysis of these cases from the Supreme Court's 2021- 2022 term for inclusion in this symposium issue of the Law Review.

Analysis Of Carson V. Makin, Wilson Huhn

Law Faculty Publications

Many school districts in the State of Maine lack high schools, so the children in those districts must attend another school selected by their parents. In 1873 the State of Maine enacted a tuition assistance program that offers a stipend to participating schools to partially defray the cost of educating children from districts that lack a high school. In 1981 the State of Maine enacted a law that categorically excludes sectarian schools’ from participating in the tuition assistance program.

Three sets of parents sued the Commissioner of the Maine Department of Education, asserting that the exclusion of sectarian schools, from …

Speech And Exercise By Private Individuals And Organizations, Kent Greenawalt

Faculty Scholarship

A central issue about redundancy concerns how far the exercise of religion is simply a form of speech that is, and should be, constitutionally protected only to the extent that reaches speech generally. Insofar as a constitutional analysis leaves flexibility, we have questions about wise legislative choices. To consider these issues carefully, we need to have a sense of what counts as relevant speech and the exercise of religion. That is the focus of this article.

It addresses the basic categorization of what counts as “speech” for freedom of speech and what counts as religious exercise when each is engaged …

Natural Law And The Rhetoric Of Empire: Reynolds V. United States, Polygamy, And Imperialism, Nathan B. Oman

Faculty Publications

In 1879, the U.S. Supreme Court construed the Free Exercise Clause for the first time, holding in Reynolds v. United States that Congress could punish Mormon polygamy. Historians have interpreted Reynolds, and the anti-polygamy legislation and litigation that it midwifed, as an extension of Reconstruction into the American West. This Article offers a new historical interpretation, one that places the birth of Free Exercise jurisprudence in Reynolds within an international context of Great Power imperialism and American international expansion at the end of the nineteenth century. It does this by recovering the lost theory of religious freedom that the Mormons …

Cutter And The Preferred Position Of The Free Exercise Clause, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s unanimous decision in Cutter v. Wilkinson (2005) allowed Congress to give religious exercise a status superior to that given to free speech. In upholding RLUIPA, a statute protecting inmate religious freedom, the Court explicitly held that statutes can allow prisoners to “assemble for worship, but not for political rallies.” Religion, which lost in Smith (1990) the traditional “preferred position” courts have accorded First Amendment rights, can now regain that position through legislation notwithstanding the Establishment Clause. Indeed, religion has not just regained parity with free speech, it now receives greater protection in the prison setting. This striking …

Free Exercise In The Free State: Maryland's Role In Religious Liberty And The First Amendment, Kenneth Lasson

All Faculty Scholarship

Maryland arguably holds the distinction of being the state whose early history most directly ensured, and whose citizenry was most directly affected by, the First Amendment's protection of religious freedom. Because of its relatively diverse religious population, Maryland stood out as both a champion of tolerance and a hotbed of discrimination for most of its colonial experience. Similarities have been pointed out between the first provincial government in St. Mary's, Maryland, and the American plan under the Constitution, particularly with respect to religious liberty.

This article offers a brief overview of the religious history of Maryland, focuses on important state …