Law Commons^™

Defining Religion And Accommodating Religious Exercise, Justin Collings, Anna Bryner

Indiana Law Journal

It is a volatile time in the jurisprudence of the First Amendment’s Religion Clauses. In recent terms, the U.S. Supreme Court has revisited many key Church-State and free exercise questions, and the Justices seem poised to revisit several more. Each of these fundamental questions presupposes an antecedent question: what, for constitutional purposes, is religion itself? The Court has never answered this question consistently or systematically. But, at least in the case of constitutionally mandated religious exemptions, a clear pattern emerges over time: the broader the Court’s definition of religion, the weaker its regime of religious exemptions. The reverse has also …

Religious Freedom Vs. Compelled Vaccination: A Case-Study Of The 2018-2019 Measles Pandemic Or The Law As A Public Health Response, Barbara Pfeffer Billauer Esq.

Catholic University Law Review

Following the recent decision in Roman Catholic Diocese v. Cuomo,^[1] clear guidance regarding the state’s powers to act during a pandemic is wanting. I look here to the 2018–2019 global measles epidemic, with a focus on the New York and Israeli experiences, for that guidance. Measles rates increased dramatically during the 2018–2019 season, both in the United States and globally. This phenomenon reflects a general decline in worldwide vaccination and an increase in vaccine resistance stoked by anti-vax groups. In the United States, the epidemic targeted ultra-Orthodox Jewish communities, as it did in Israel. This Article evaluates the …

Inviting An Impermissible Inquiry? Rfra’S Substantial-Burden Requirement And “Centrality”, D. Bowie Duncan

Pepperdine Law Review

The Religious Freedom Restoration Act (RFRA) prohibits the federal government from substan-tially burdening a person’s religious exercise unless the government can satisfy strict scrutiny. The statute also defines religious exercise to prohibit courts from inquiring into how central a particular religious exercise is to a person’s religion. “The term ‘religious exercise,’” reads the relevant provision, “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Despite this prohibition on centrality inquiries, some scholars argue that RFRA’s substantial-burden element requires courts to consider the religious costs a law imposes on a religious adherent …

The Right To Conscience Vs. The Right To Die: Physician-Assisted Suicide, Catholic Hospitals, And The Rising Threat To Institutional Free Exercise In Healthcare, Zachary R. Carstens

Pepperdine Law Review

An imminent conflict is developing between religious healthcare institutions opposed to physician-assisted death (PAD) and their healthcare employees who wish to offer PAD to their patients. When these interests clash, institutional conscience claims must prevail over doctors’ desires and patients’ demands. This article catalogues the incomplete patchwork of conscience protections guaranteed to American healthcare workers and institutions, as well as the swiftly accelerating wave of PAD legalization sweeping the states. The article documents the tactical vocabulary—deployed with nearly identical language in every state PAD statute—that conspicuously anticipates con-science objections from the massive, and staunchly anti-PAD, Catholic healthcare system. Notably, in …

Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson

Washington and Lee Law Review

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is …

Freedom Of Religion And Belief In India And Australia: An Introductory Comparative Assessment Of Two Federal Constitutional Democracies, Paul T. Babie, Arvind P. Bhanu

Pace Law Review

This article considers the freedom of religion and belief (“free exercise”) in two secular federal constitutional democracies: India and Australia. Both constitutional systems emerged from the former British Empire and both continue in membership of the Commonwealth of Nations, which succeeded it. However, the similarities end there, for while both separate church and state, and protect free exercise, they do so in very different ways. On the one hand, the Indian Constitution contains express provisions which comprehensively deal with free exercise. On the other hand, while one finds what might appear a protection for free exercise in the Australian Constitution, …

A Close Reading Of Barnette, In Honor Of Vincent Blasi, Paul Horwitz

FIU Law Review

No abstract provided.

Fighting The New Wars Of Religion: The Need For A Tolerant First Amendment, Leslie C. Griffin

Maine Law Review

Religious wars have broken out around the country about the legality of gay marriage, the consequences of gay ordination for property ownership, the funding of faith-based organizations and the placement of crosses and Ten Commandments (but not Seven Aphorisms) on public land. To resolve such impassioned disputes, Americans traditionally look to the Religion Clauses of the First Amendment, which state "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Unfortunately, the Court's modern decisions interpreting those clauses have shed more heat than light on the discussion and have provoked ongoing controversy instead of …

To Accommodate Or Not To Accommodate: (When) Should The State Regulate Religion To Protect The Rights Of Children And Third Parties?, Hillel Y. Levin, Allan J. Jacobs, Kavita Shah Arora

Washington and Lee Law Review

When should we accommodate religious practices? When should we demand that religious groups instead conform to social or legal norms? Who should make these decisions, and how? These questions lie at the very heart of our contemporary debates in the field of Law and Religion.

Particularly thorny issues arise where religious practices may impose health-related harm to children within a religious group or to third parties. Unfortunately, legislators, courts, scholars, ethicists, and medical practitioners have not offered a consistent way to analyze such cases, so the law is inconsistent. This Article suggests, first, that the lack of consistency is a …

Five Justices Have Transformed The First Amendment’S Freedom Of Religion To Freedom From Religion, Gerald Walpin

Touro Law Review

No abstract provided.

The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe

Pepperdine Law Review

In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.

Free Exercise Reconceived: The Logic And Limits Of Hosanna-Tabor, Christopher C. Lund

Northwestern University Law Review

Two terms ago, in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court held that the First Amendment precludes ministers from bringing employment-related claims against their churches. In some ways, Hosanna-Tabor changed little. The lower courts had all reached that conclusion already, though the Supreme Court slightly expanded the breadth of the so-called ministerial exception. More important is how Hosanna-Tabor reconceptualized things, especially in how it pushed back somewhat against the Supreme Court’s imperial decision in Employment Division v. Smith, where the Court had broadly held that the Free Exercise Clause did not entitle religious believers to exemptions …

Conscience, Coercion, And The Constitution: Some Thoughts, Dwight G. Duncan

University of Massachusetts Law Review

As a consequence, this article will argue that the most viable constitutional strategy for protecting conscientious objectors is to bracket the question of whether it is religiously motivated. Rather, it will focus simply on the question of whether it is a sincerely held moral conviction, while seeking to expand existing freedom of speech case law under the First Amendment to the United States Constitution to maximize protection for people of conscience from being obliged to act contrary to their conscience.

Learning Lessons From Multani: Considering Canada's Response To Religious Garb Issues In Public Schools, Allison N. Crawford

Georgia Journal of International & Comparative Law

No abstract provided.

Supreme Court, Sullivan County, Holman V. Goord, Eric Pack

Touro Law Review

No abstract provided.

Delegation And The Destruction Of American Liberties: The Affordable Care Act And The Contraception Mandate, Michael Barone, Jr.

Touro Law Review

No abstract provided.

The First Amendment: Religious Freedom For All, Including Muslims, Asma Uddin

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Unemployment Insurance And The Religion Clauses Of The United States Constitution, David J. Agatstein

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Heffron V. International Society For Krishna Consciousness Inc.: A Restrictive Constitutional View Of The Proselytizing Rights Of Religious Organizations , Michael M. Greenburg

Pepperdine Law Review

The persistent efforts of religious organizations to reach their public have consistently been met with governmental limitation due to the often conflicting interests of public order, and free speech and expression. Heffron v. International Society for Krishna Consciousness, Inc. represents the Court's latest redefinition of the extent of permissible limitations upon the activities of these groups. The author examines the decision in light of the traditional criteria for permissible time, place, and manner restrictions upon free speech and evaluates the Court's implementation of these restrictions with respect to the activities of the Krishna group. The impact of the decision upon …

A New Standard Of Review In Free Exercise Cases: Thomas V. Review Board Of The Indiana Employment & Security Division, Lynn Mccutchen Gardner

Pepperdine Law Review

In Thomas v. Review Board of the Indiana Employment Security Division, the United States Supreme Court was called upon to clarify the appropriate level of review to be applied in cases which examine the first amendment right to free exercise of religion. The Court ruled that the "compelling state interest" test is the proper standard to be used. The Court also accorded first amendment protection to beliefs which are not shared by other members of a religious group and which are instead the unique interpretation of an individual member and not acceptable, logical, consistent or comprehensible to others.

Public Policy Against Religion: Doubting Thomas , Richard H. Seeburger

Pepperdine Law Review

In free exercise cases, the Supreme Court has adopted a least restrictive alternative test in an attempt to maximize protection for religiously motivated practices. Because the least restrictive alternative test only considers the importance of the governmental interest and the availability of alternative means to accomplish those interests, thereby ignoring the importance of the burdened religious activity to the individual and the degree of burden on religious activity, all religious interests are treated equally when asserted against a governmental interest. Under such an inflexible and brittle test, the Supreme Court has recently denied religious claims which had previously been recognized. …

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

Chicago-Kent Law Review

As a number of commentators have observed, the Supreme Court's record in adjudicating the free exercise claims of religious minorities—in particular, unfamiliar and unpopular religious minorities—is vulnerable to the critique that the Court's rhetoric and, at times, the Court's holdings demonstrate an inability or unwillingness to look beyond majoritarian religious perspectives. Building on this scholarship, this article analyzes the Court's adjudication of Establishment Clause cases in the context of different religious perspectives, including those of religious minorities, religious minorities, and nonbelievers.

In exploring these questions, this article traces the Court's Establishment Clause jurisprudence through several decades, examining a number of …

Religious Exemptions And The Common Good: A Reply To Professor Carmella, Laura S. Underkuffler

West Virginia Law Review

No abstract provided.

Establishment Clause Limits On Free Exercise Accommodations, Kent Greenawalt

West Virginia Law Review

No abstract provided.

The Establishment Clause And Religious Expression In Government Settings: Four Variables In Search Of A Standard, Daniel O. Conkle

West Virginia Law Review

No abstract provided.

Responsible Freedom Under The Religion Clauses: Exemptions, Legal Pluralism, And The Common Good, Angela C. Carmella

West Virginia Law Review

No abstract provided.

When Accommodations For Religion Violoate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck

West Virginia Law Review

No abstract provided.

Public School Students' Religious Speech And Viewpoint Discrimination, Kristi L. Bowman

West Virginia Law Review

No abstract provided.

Reconciling The Irreconcilable: Military Chaplains And The First Amendment, Steven K. Green

West Virginia Law Review

No abstract provided.

Why Student Religious Speech Is Speech, John E. Taylor

West Virginia Law Review

No abstract provided.