Religion Law Commons^™

The New Fourth Era Of American Religious Freedom, John Witte Jr., Eric Wang

Faculty Articles

The U.S. Supreme Court has entered decisively into a new fourth era of American religious freedom. In the first era, from 1776 to 1940, the Court largely left governance of religious freedom to the individual states and did little to enforce the First Amendment Religion Clauses. In the second era, from 1940 to 1990, the Court “incorporated” the First Amendment into the Fourteenth Amendment Due Process Clause and applied both a strong Free Exercise Clause and a strong Establishment Clause against federal, state, and local governments alike. In the third era, from the mid-1980s to 2010, the Court softened the …

"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman

Scholarly Works

At the heart of American constitutionalism is an irony. The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes. Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements. The process of constitutionalization has been one of secularization. The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual’s responsibility before God.

This Essay explores another overlooked instance of constitutional secularization. Many …

Antidiscrimination And Tax Exemption, Alex Zhang

Faculty Articles

The Supreme Court held, in Bob Jones University v. United States, that violations of fundamental public policy— including race discrimination in education—disqualify an entity for tax exemption. The holding of the case was broad, and its results cohered with the ideals of progressive society: the government ought not to subsidize discrimination, particularly of marginalized groups. But almost four decades later, the decision has never realized its antidiscriminatory potential. The Internal Revenue Service (IRS) has limited implementation to the narrowest facts of the case. The scholarly literature has not formulated a systematic account of how to enforce the Bob Jones …

The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine

Scholarly Works

No abstract provided.

Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There Is The Possible Application Of Bostock V. Clayton County, Kevin D. Brown, Lalit Khandare, Annapurna Waughray, Kenneth G. Dau-Schmidt, Theodore M. Shaw

Articles by Maurer Faculty

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …

Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine

Scholarly Works

Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …

In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Faculty Articles

The recent article In God We Trust (Unless We Change Our Mind): How State of Mind Relates to Religious Arbitration ("In God We Trust") proposes that those who sign arbitration agreements that consent to a religious legal system as the basis of the rules of arbitration be allowed to back out of such agreements based on their constitutional right to free exercise. This article is a response and is divided into two sections. In the first section, we show that such an exemption would violate the Federal Arbitration Act's (FAA) basic rules preventing the states from heightened regulation of arbitration …

Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine

Scholarly Works

For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, …

Brief Of Constitutional Law Scholars As Amici Curiae In Support Of Petitioners, David F. Forte, Ronald J. Colombo, Richard Epstein, Carl H. Esbeck, Robert P. George, Mary Ann Glendon, Brian Mccall, Stacy Scaldo, Steven Smith

Law Faculty Briefs and Court Documents

Lurking behind the regulatory issues presented by this appeal is a concerted effort to displace the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. ("RFRA"), with a novel approach that would trivialize a law's burden on religion. The Court should not indulge it.

The critics' argument suffers from several analytical defects that can be remedied by (1) a proper constitutional understanding of RFRA's relationship to the Establishment Clause; (2) an accurate understanding of how the Religion Clauses safeguard third-party interests; and (3) the correct application of these understandings to the Final Rules.

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Law Faculty Articles and Essays

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex …

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 …

A Martin Luther King Jr. Amendment To The U.S. Constitution: Toward The Abolition Of Poverty, Theodore Walker

Perkins Faculty Research and Special Events

Rev. Dr. Martin Luther King Jr. prescribed that we add an economic bill of rights to the U.S. Constitution. A King-Inspired bill of rights should include a constitutional amendment that enumerates a natural human right to be free from economic poverty, and appropriate enforcement legislation.

For the sake of abolishing slavery, the Thirteenth Amendment says:

(Section 1) Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

(Section 2) Congress shall have power to enforce this article by …

Irreconcilable Differences? Whole Woman’S Health, Gonzales, And Justice Kennedy’S Vision Of American Abortion Jurisprudence, O. Carter Snead, Laura Wolk

Journal Articles

A law is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."' Twenty-five years have elapsed since a plurality of the Supreme Court articulated this undue burden standard in Planned Parenthood of Southeastern Pennsylvania v. Casey, yet its contours remain elusive. Notably, two current members of the Court-Justice Breyer and Justice Kennedy-seem to fundamentally differ in their understanding of what Casey requires and permits. In Gonzales v. Carhart, Justice Kennedy emphasized a wide range of permissible state interests implicated by abortion and indicated …

Applying Strict Scrutiny: An Empirical Analysis Of Free Exercise Cases, Caleb C. Wolanek, Heidi H. Liu

All Faculty Scholarship

Strict scrutiny and the free exercise of religion have had an uneasy relationship in American jurisprudence. In this Article, we trace the history of strict scrutiny in free exercise cases and outline how it applies today. Then, using a unique dataset of cases from a 25-year period, we detail the characteristics of these cases. Finally, we discuss the implications for future cases. Our research indicates that even though claimants currently win a large percentage of cases, those victories might not be durable.

Religious Discrimination Based On Employer Misperception, Dallan F. Flake

Law Faculty Scholarship

This Article addresses the circuit split over whether Title VII prohibits discrimination based on an employer's misperception of an employee's religion. This is an especially critical issue because misperception-based religious discrimination is likely to increase as the United States continues to experience unprecedented religious diversification. Some courts read Title VII narrowly to preclude such claims, reasoning that the statutory text only prohibits discrimination based on an individual's actual religion. Other courts interpret the statute more expansively in concluding such claims are cognizable because the employer's intent is equally malicious in misperception and conventional discrimination cases. I argue that the statutory …

Liberal, Conservative, And Political: The Supreme Court's Impact On The American Family In The Uber-Partisan Era, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

Fool Me Twice: Zubik V. Burwell And The Perils Of Judicial Faith In Government Claims, Mark L. Rienzi

Scholarly Articles

This article proceeds in three parts. Part I examines the three government concessions that made the Supreme Court’s Zubik decision possible and how those concessions ultimately revealed that it is possible to protect both contraceptive access and religious liberty. Part II discusses how the circuit courts were brought to emphatically adopt positions the government would ultimately abandon under the slightest pressure. Part III concludes with some key lessons lower courts should take from Zubik to better protect the integrity of both the court system and religious-liberty laws.

Corporate Law And Theory In Hobby Lobby, Elizabeth Pollman

All Faculty Scholarship

Does a business corporation constitute a “person” that can “exercise religion” under the Religious Freedom Restoration Act of 1993? In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court answered this novel question in the affirmative, but this chapter shows that its anemic treatment of corporate law and theory provided little guidance on how to implement and limit the landmark ruling. This chapter critically examines the issues of corporate law and theory driving the Court’s analysis: (1) the theory of the corporation as a right holder; (2) corporate purpose; (3) the “closely held” category; and (4) state corporate law as …

Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus

Articles

In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists. But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the …

Religious Freedom In A Brave New World: How Leaders In Faith-Based Schools Can Follow Their Beliefs In Hiring, Charles J. Russo

Educational Leadership Faculty Publications

A confluence of litigation at the Supreme Court raises important, yet potentially conflicting, questions about the freedom of employers in religious schools¹ to hire teachers and staff members. On the one hand, in Hosanna-Tabor v. Equal Employment Opportunities Commission,² a unanimous Court reasoned that the ministerial exception granted religious leaders alone the authority to choose who is qualified to teach in their schools. On the other hand, the Court’s rulings on same sex-unions seem to be ushering in a brave new world. For example, in United States v. Windsor,³ the Court struck down the Defense …

Too Strict?, Richard B. Collins

Publications

Should the strict scrutiny standard govern judicial review of claims that government has burdened religious freedom? American law’s patchwork of rules applies that demanding standard to some claims but denies any meaningful review to others. A major difficulty is that most claims alleging denial of religious freedom depend on beliefs that cannot be reviewed by secular courts. Claims based on allegations alone shift the burden to the defending government. Strict scrutiny purports to make justification very difficult; governments are supposed to lose most cases. A second defect of the test in religious freedom cases is its failure to consider harm …

Understanding The Establishment Clause: A Revisit, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Religious Freedom In The United States: ‘When You Come To A Fork In The Road, Take It', Charles J. Russo

Educational Leadership Faculty Publications

As expansive as the Supreme Court’s view of the First Amendment religion clauses has been, its jurisprudence has demonstrated that its rulings do not always achieve the outcomes desired by proponents of religious freedom.³ From the perspective of supporters of religious freedom, this realization lends credence to the preceding wry comment by Justice Scalia. This article details the Court’s inconsistent treatment of Christianity, and people of faith broadly, especially in educational settings. These inconsistent judicial outcomes run the risk of increasingly marginalizing matters of faith and conscience in the public square.⁴ As discussed in this article, disputes over …

The New Victims Of The Old Anti-Catholicism, Christopher C. Lund

Law Faculty Research Publications

Santayana once said that those who cannot remember the past are condemned to repeat it, the implication being that we can avoid future mistakes by paying better attention to past ones. Perhaps this is so. Or perhaps it is as George Bernard Shaw once said-that we learn from history only that we learn nothing from history. Yet one thing is surely clear. To the extent that modern injustices have identifiable historical antecedents, we rightly stand doubly condemned for them.

This Essay looks at four modern church-state cases which span the First Amendment spectrum. The plaintiffs are religiously diverse-one is a …

Bridging The Great Divide--A Response To Linda Greenhouse And Reva B. Siegel's Before (And After) Roe V. Wade: New Questions About Backlash, Lolita Buckner Inniss

Publications

This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry focuses on what factors are implicated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. By naming party politics and the Catholic Church, Greenhouse and Siegel posit two crucial elements that shaped the abortion debate. I assert, however, that what is not discussed in their Article is the way numerous other factors have figured into …

Limiting Principles And Empowering Practices In American Indian Religious Freedoms, Kristen A. Carpenter

Publications

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress's subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was …

If It Is Broken, Then Fix It: Needed Reforms To Employment Discrimination Law: 2009 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Melissa Hart, Minna Kotkin, Roberto Corrada, Deborah Widiss

Publications

No abstract provided.

Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen

Publications

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II's hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.

The Supreme Court And Pledge Of Allegiance: Does God Still Have A Place In American Schools?, Charles J. Russo

Educational Leadership Faculty Publications

The dearth of statistical or anecdotal evidence aside, combined with the relative lack of reported litigation, it appears that most students and teachers regularly participate in perhaps the most common daily school ritual by joining in the patriotic recitation of the Pledge of Allegiance (Pledge) and the salute to the American Flag. Yet, as discussed throughout this article, this daily practice has had a history of controversy, whether in schools or political settings.

Turning specifically to schools, in Newdow v. United States Congress (Newdow), the Ninth Circuit set off a firestorm of controversy when, in a case from California, it …