Law Commons^™

Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe

Cornell Law Faculty Publications

When should a constitutional democracy allow private associations to discriminate? That question has become prominent once again, not only in the United States but abroad as well. John Inazu provides a provocative answer in his impressive Article, The Four Freedoms and the Future of Religious Liberty. According to his proposal, “strong pluralism,” associations should have a constitutional right to limit membership on any ground, including race. Strong pluralism articulates only three limits: It does not apply to the government, to commercial entities, or to monopolistic groups. In this Response, I raise four questions about Four Freedoms. First, I ask why …

Religious Exceptionalism And Human Rights, Laura S. Underkuffler

Cornell Law Faculty Publications

The liberal-democratic governmental compact assures that citizenship, political power, and civic participation in all of its forms will be afforded to all citizens on an equal basis. In particular, simple identity—as a presumptive matter—cannot be the basis for the denial of human rights. It is on this simple yet elegant principle that all civil-rights laws are founded.

Freedom of religion presents a particularly complex problem in this context. On the one hand, it is—itself—a universally recognized member of the human rights family, and is protected under civil-rights laws. On the other hand, it is— because of its possible invocation by …

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

Cornell Law Faculty Publications

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories …