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Full-Text Articles in Law
Religious Freedom As A Technology Of Modern Secular Governance, Peter G. Danchin
Religious Freedom As A Technology Of Modern Secular Governance, Peter G. Danchin
Faculty Scholarship
No abstract provided.
Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin
Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin
Faculty Scholarship
No abstract provided.
Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark
Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark
Faculty Scholarship
Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism …
Fundamental Questions About The Religion Clauses: Reflections On Some Critiques, Kent Greenawalt
Fundamental Questions About The Religion Clauses: Reflections On Some Critiques, Kent Greenawalt
Faculty Scholarship
This essay responds to some major critiques of my work on the religion clauses. The effort has seemed worth undertaking because many issues the critics raise lie at the core of one’s approach to free exercise and nonestablishment, and some of those issues matter greatly for constitutional adjudication more broadly. Like any author, perhaps, my reaction to reading some comments has been that I did not quite say that, but I shall not bore you with these quibbles about how well I explained myself in the past. Rather, I shall try to confront the genuinely basic questions that many of …
How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt
How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt
Faculty Scholarship
As one of four contributors to an issue celebrating Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution, I have chosen to write an Essay that differs from an ordinary review. I compare the authors' approach with two other recent formulations of what should be central for the jurisprudence of the Religion Clauses. Since I have recently published my own treatment of the Free Exercise Clause, and a second volume on the Establishment Clause is in the pipeline toward publication, I do not here present my own positive views (though I provide references for interested readers). Those views …
The Permissible Scope Of Legal Limitations On The Freedom Of Religion Or Belief In The United States, Frederick Mark Gedicks
The Permissible Scope Of Legal Limitations On The Freedom Of Religion Or Belief In The United States, Frederick Mark Gedicks
Faculty Scholarship
This article summarizes the law of legal limitations on religious freedom in the UnitedStates, including sources and hierarchies of applicable law, structural limitations on religious freedom, grounds for limiting such freedom, an analytical description oflimitations, and background influences on limitations law, and applies this law to hypothetical situations.
Federal judicial decisions interpreting the Religion Clauses are the principal source oflimitations law in the United States. RLUIPA and RFRA, federal anti-discrimination statutes, and executive orders are other important sources of religious freedom law. State constitutions, statutes, and regulations are important sources law when federal sources are absent or inapplicable. International human …
Against Separation, Philip A. Hamburger
Against Separation, Philip A. Hamburger
Faculty Scholarship
In 1802, in a letter to the Danbury Baptist Association, Thomas Jefferson wrote that the First Amendment had the effect of "building a wall of separation between Church & State." As it happens, when Congress drafted the First Amendment in 1789, Jefferson was enjoying Paris. Nonetheless, his words about separation are often taken as an authoritative interpretation of the First Amendment's establishment clause. Indeed, in the 1947 Everson v. Board of Education decision, the Supreme Court quoted Jefferson's pronouncement to justify its conclusion that the First Amendment guarantees a separation of church and state. Not only the justices but …