Law Commons^™

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 …

Neutral Discrimination – Selective Enforcement Of Religiously Neutral Laws And The First Amendment, Jeffrey Gautsche

Touro Law Review

No abstract provided.

Is Prayer Constitutional At Municipal Council Meetings?, Thomas A. Schweitzer

Thomas A. Schweitzer

The author discusses Galloway v. Town of Greece, a case which challenges official prayers at town council meetings. To provide the necessary background information for understanding the issues in Galloway, the author begins with a brief discussion of two other cases, Lemon v. Kurtzman and Marsh v. Chambers. The author then examines the district and circuit court decisions in Galloway and the Establishment Clause issues posed by the case. Next, the author notes issues raised by other lower court decisions involving legislative prayer after Marsh. Towards the end of the article, to clarify and decide the constitutional issues, the author …

Press Definition And The Religion Analogy, Ronnell Andersen Jones

Faculty Scholarship

n a Harvard Law Review Forum response to Professor Sonja West's symposium article, "Press Exceptionalism," Professor RonNell Andersen Jones critiques Professor West's effort to define "the press" for purposes of Press Clause exceptions and addresses the weaknesses of Professor West's analogy to Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC in drawing these definitional lines. The response highlights distinctions between Press Clause and Religion Clause jurisprudence and urges a more functional approach to press definition.

Lausti And Salazar: Are Religious Symbols Legitimate In The Public Square?, Katie A. Croghan

Georgia Journal of International & Comparative Law

No abstract provided.

Supreme Court, Kings County, Wilson V. Kilkenny, James Dougherty

Touro Law Review

No abstract provided.

Court Of Appeals Of New York - Catholic Charities Of The Diocese Of Albany V. Serio, Sarah Marx

Touro Law Review

No abstract provided.

Seeking Guidance? New Legal Challenges To 'Legislative Prayer', Marc O. Degirolami

Faculty Publications

(Excerpt)

It has long been the tradition of American citizens to pray for divine blessing and guidance in their civic business. This tradition, which predates the founding of the American Republic, finds expression at all levels of government, federal, state, and local. It was embraced by the First Continental Congress, the same Congress that both employed a paid chaplain and later drafted the First Amendment to the U.S. Constitution; it was maintained during the passage of the Fourteenth Amendment; and it persists in various guises to this day.

The New Religious Institutionalism Meets The Old Establishment Clause, Gregory P. Magarian

Gregory P. Magarian

Recent religious liberty scholarship spotlights the legal rights of churches and similar religious institutions, as distinct from the rights of individual religious believers. Advocates of “the new religious institutionalism” argue that religious institutions need robust legal rights in order to effectuate their institutional functions and advance religious believers’ interests. The Supreme Court recently fanned the new institutionalist flame by holding, in Hosanna Tabor Evangelical Lutheran Church v. EEOC, that the Constitution protects churches from legal liability for employment discrimination in hiring ministers. In this essay, Professor Magarian considers a complication that advocates of the new religious institutionalism have generally ignored: …

Money And Power In Religious Competition: A Critique Of The Religious Free Market, Jianlin Chen

Jianlin Chen

Academics have frequently alluded to the normative value of the religious free market fostered by the twin legal guarantees of the free exercise of religion and the absence of state establishment of religion. This article challenges the idealized portrayal of a religion’s ‘flourish[ing] according to the zeal of its adherents and the appeal of its dogma’ and examines the dynamics of material wealth and political power in a religion’s success. This article suggests that controversial measures such as affirmative action for socio-economically disadvantaged religions and restrictions of religious involvement in politics are not necessarily incompatible with the religious free market.

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Faculty Scholarship

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is at least absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent.

The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. …

Government Endorsement: A Reply To Nelson Tebbe's Government Nonendorsement, Abner S. Greene

Faculty Scholarship

In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center,

The Curious Case Of Legislative Prayer: Town Of Greece V. Galloway, Ian C. Bartrum

Scholarly Works

This essay explores the Supreme Court's decision to reenter the debate over legislative prayers, and the Solicitor General's curious decision to enter the case in defense of Greece, New York's (somewhat dubious) practice. I suggest that the Court's decision, and the Solicitor's brief, can best be understood as part of larger conflict over Establishment Clause doctrine moving forward.

Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion, Frederick Mark Gedicks, Rebecca G. Van Tassell

Faculty Scholarship

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked the Establishment Clause limits on such exemptions.

The heated religious-liberty rhetoric aimed at the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — a government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …