Law Commons^™

Smith In Theory And Practice, Nelson Tebbe

Nelson Tebbe

Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and …

Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett

Richard W Garnett

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.

Religious freedom, in the American tradition, is not …

Brief Of The Catholic University Of America School Of Canon Law, The Lutheran Church-Missouri Synod, The Queens Federation Of Churches, And The Serbian Orthodox Church In North And South America, As Amici Curiae In Support Of Petitioners, Richard W. Garnett, David H. Hyams

Richard W Garnett

This brief addresses the importance of the principle of church autonomy and the protections provided by the First and Fourteenth Amendments and this Court's precedents regarding religious denominations' internal mandatory dispute-resolution procedures.

Religious Accommodations And – And Among – Civil Rights: Separation, Toleration, And Accommodation, Richard W. Garnett

Richard W Garnett

This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in …

Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Michael Heise

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much …

Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, Amy Sepinwall

Amy J. Sepinwall

In Burwell v. Hobby Lobby, the Supreme Court held, for the first time, that the Religious Freedom Restoration Act (RFRA) applied to for-profit corporations and, on that basis, it allowed Hobby Lobby to omit otherwise mandated contraceptive coverage from its employee healthcare package. Critics argue that the Court’s novel expansion of corporate rights is fundamentally inconsistent with the basic principles of corporate law. In particular, they contend that the decision ignores the fact that the corporation, as an artificial entity, cannot exercise religion in its own right, and they decry the notion that the law might look through the corporate …

Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett

Richard W Garnett

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

The Challenge Of Strong Religion In The Liberal State, Gila Stopler

Gila Stopler

Liberal states are struggling to find ways to deal with strong religion in a manner that would enable them to give due respect to the religious beliefs of citizens while at the same time to adhere to core liberal values such as respect for human rights and avoidance of undue entanglement of religious and state authority. One type of solution that has been offered is granting authority and autonomy to private religious tribunals, for example in the area of religious family law. Another type of solution is creating a direct link between state law and some religious obligations, as was …

The Primacy Of Political Actors In Accommodation Of Religion, William K. Kelley

William K. Kelley

This article focuses on the relationship between freedom of religion and the norm against non-establishment of religion in the context of government efforts to accommodate religious practices. It analyzes First Amendment doctrine in this area, and concludes that the Supreme Court has consistently been generous in permitting accommodations of religion when they are the product of judicial decisions; in other words, at least until recently the Court has been open to mandatory accommodations so long as they are ordered by judges. By contrast, the Court has long been suspicious of - and far from generous in permitting - accommodations as …

Religion, Division, And The First Amendment, Richard W. Garnett

Richard W Garnett

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …

Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett

Richard W Garnett

What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if …

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Richard W Garnett

No abstract provided.

'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett

Richard W Garnett

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component …

Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett

Richard W Garnett

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand church-state separation? …

Church, State, And The Practice Of Love, Richard W. Garnett

Richard W Garnett

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.

The specific goal for this paper is to draw from Deus caritas est some insight into …

Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin

Peter G. Danchin

No abstract provided.

Religions As Sovereigns: Why Religion Is "Special", Elizabeth A. Clark

Elizabeth A. Clark