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Full-Text Articles in Law
Independent And Overlapping: Institutional Religious Freedom And Religious Providers Of Social Services, Kathleen A. Brady
Independent And Overlapping: Institutional Religious Freedom And Religious Providers Of Social Services, Kathleen A. Brady
Loyola University Chicago Law Journal
Roughly two decades ago, scholarly interest in the limits of government involvement in religious institutions exploded. Scholars explored distinctions between the spiritual and temporal dimensions of human activity and identified numerous individual, social, spiritual and civic goods associated with independent religious groups. From these foundations, they defined and refined areas of protection and immunity from government intervention. A shared premise of much of this work was that religious matters belong to religious believers and their institutions, and that the internal governance and operations of these institutions must be kept from state interference. In 2012, this scholarship bore fruit when the …
Locating Free-Exercise Most-Favored-Nation-Status (Mfn) Reasoning In Constitutional Context, Alan E. Brownstein, Vikram David Amar
Locating Free-Exercise Most-Favored-Nation-Status (Mfn) Reasoning In Constitutional Context, Alan E. Brownstein, Vikram David Amar
Loyola University Chicago Law Journal
This Article examines the theoretical and doctrinal origins and consequences of a potentially game-changing approach to processing claims brought under the Free Exercise Clause of the First Amendment. Since 1990, and the decision in Employment Division v. Smith, the Court has read that Clause not to require accommodation of religious activity via exemptions from religion-neutral and generally applicable laws and regulations. What the Free Exercise Clause does prohibit, according to Smith, is government action targeting or discriminating against religion. But the Court’s decision a year ago in Tandon v. Newsom provides some powerful evidence about how this doctrine …
The Establishment Clause, Civil Rights, And The Accomodationist Path Forward, Lisa Shaw Roy
The Establishment Clause, Civil Rights, And The Accomodationist Path Forward, Lisa Shaw Roy
Loyola University Chicago Law Journal
The U.S. Supreme Court’s First Amendment Religion Clause doctrine is undergoing a transition between the Court’s older, strict separationist decisions and its current accommodationist approach. This shift can be seen in the Court’s most recent Establishment and Free Exercise Clause decisions, and in particular, in its unanimous Free Speech Clause decision in Shurtleff v. City of Boston, a case which found that the challenger, Harold Shurtleff, had a First Amendment right to raise a flag with a cross on a city flagpole. In many ways, Shurtleff exemplifies the Court’s incremental movement toward an accommodationist Establishment Clause doctrine, and this …
Constructing The Establishment Clause, Vincent Phillip Muñoz, Kate Hardiman Rhodes
Constructing The Establishment Clause, Vincent Phillip Muñoz, Kate Hardiman Rhodes
Loyola University Chicago Law Journal
In this Article, we attempt to document how the history of the Supreme Court’s Establishment Clause jurisprudence is a history of constructionism, much of it—though not all—originalist in flavor. We use “construction” in a technical sense and in contradistinction to “interpretation.” Construction is the act of importing meaning into the constitutional text. To document and explain how leading Supreme Court justices have engaged in originalist constructionism, we employ the interpretation-construction distinction as well as two additional analytical concepts recently discussed by leading legal scholars: Sam Bray’s recovery of “the mischief rule” and Jack Balkin’s textual typology of principles, standards, and …
Is Church Autonomy Jurisdictional?, Lael Weinberger
Is Church Autonomy Jurisdictional?, Lael Weinberger
Loyola University Chicago Law Journal
The First Amendment’s religion clauses create what courts have called “church autonomy doctrine,” protecting the internal self-governance of religious institutions. But courts are divided as to whether this doctrine is simply an affirmative defense for religious institutions or a jurisdictional limitation on courts’ ability to adjudicate internal religious matters. Scholars, meanwhile, have long debated whether church autonomy is jurisdictional at a higher level of abstraction, speaking of jurisdiction as a concept of authority rather than a technical term for civil procedure. This Article engages this multilevel debate with an argument for unbundling. First, it urges unbundling conceptual jurisdiction from judicial …
Religious Nondelegation, B. Jessie Hill
Religious Nondelegation, B. Jessie Hill
Loyola University Chicago Law Journal
The problem of religious exemptions has given rise to a rich body of scholarly literature, as well as a flood of litigation. One recent set of cases involved challenges to the Affordable Care Act’s (ACA) health care mandates—Section 1557 and the contraceptive mandate—and their religious exemptions. Some scholars have argued that religious exemptions violate the Establishment Clause when they confer a benefit on religious individuals, the costs of which are largely borne by those who do not share the religious individuals’ beliefs—a notion that is sometimes expressed in terms of “third-party harms.” The third-party harms approach to Establishment Clause violations …
The New Thoreaus, Mark L. Movsesian
The New Thoreaus, Mark L. Movsesian
Loyola University Chicago Law Journal
Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously indicated that “religion” denotes a communal rather than a purely individual phenomenon. An organized group like the Amish would qualify as religious, the Court wrote, but a solitary seeker like the nineteenth century transcendentalist Henry David Thoreau would not. At the time, the question was mostly peripheral; hardly any Americans claimed to have their own, personal religions that would make it difficult for them to comply with civil law. In the intervening decades, though, American religion has changed. One-fifth of us—roughly sixty-six million people—now claim, like Thoreau, to …
Families, Schools, And Religious Freedom, Helen M. Alvaré
Families, Schools, And Religious Freedom, Helen M. Alvaré
Loyola University Chicago Law Journal
Old and New Testament scriptures persistently point to human beings’ romantic and familial relationships according to Christian norms as means of glimpsing foundational religious beliefs about God’s identity, how God loves human beings, and how human beings are to love Him and one another. Christian families, therefore, are alarmed to witness public schools educating minors using normative materials directly opposing Christian norms, and doing so outside of courses subject to parental opt-ins or opt- outs. The Supreme Court has not weighed in on the precise question of parental rights respecting particular educational content of this type, but lower federal courts …
Introduction To Issue Two, Jack Hynes
Introduction To Issue Two, Jack Hynes
Loyola University Chicago Law Journal
No abstract provided.
It Was Never About A Cake: Masterpiece Cakeshop And The Crusade To Weaponize Religious Freedom, Andrew L. Seidel
It Was Never About A Cake: Masterpiece Cakeshop And The Crusade To Weaponize Religious Freedom, Andrew L. Seidel
Loyola University Chicago Law Journal
No abstract provided.
Holt V. Hobbs: Rluipa Requires Religious Exception To Prison's Beard Ban, Jonathan J. Sheffield, Alex S. Moe, Spencer K. Lickteig
Holt V. Hobbs: Rluipa Requires Religious Exception To Prison's Beard Ban, Jonathan J. Sheffield, Alex S. Moe, Spencer K. Lickteig
Loyola University Chicago Law Journal
No abstract provided.
Unleashing Or Harnessing "Armies Of Compassion"?: Reflections On The Faith-Based Initiative, Linda C. Mcclain
Unleashing Or Harnessing "Armies Of Compassion"?: Reflections On The Faith-Based Initiative, Linda C. Mcclain
Loyola University Chicago Law Journal
No abstract provided.
Marriage, Same-Sex Relationships, And The Catholic Church, Thomas J. Paprocki
Marriage, Same-Sex Relationships, And The Catholic Church, Thomas J. Paprocki
Loyola University Chicago Law Journal
No abstract provided.
The Shattered Vessel: The Dying Person In Jewish Law And Ethics, Philip J. Bentley
The Shattered Vessel: The Dying Person In Jewish Law And Ethics, Philip J. Bentley
Loyola University Chicago Law Journal
No abstract provided.
Peremptory Challenges And Religion: The Unanswered Prayer For A Supreme Court Opinion, Courtney A. Waggoner
Peremptory Challenges And Religion: The Unanswered Prayer For A Supreme Court Opinion, Courtney A. Waggoner
Loyola University Chicago Law Journal
No abstract provided.
The Politically Active Church, Douglas H. Cook
The Politically Active Church, Douglas H. Cook
Loyola University Chicago Law Journal
No abstract provided.
Freedom Of Speech, Religious Harassment Law, And Religious Accomodation Law, Eugene Volokh
Freedom Of Speech, Religious Harassment Law, And Religious Accomodation Law, Eugene Volokh
Loyola University Chicago Law Journal
No abstract provided.
Title Vii And Religious Liberty, Kent Greenawalt
Title Vii And Religious Liberty, Kent Greenawalt
Loyola University Chicago Law Journal
No abstract provided.
Anti-Catholicism And Modern Church-State Relations, Thomas C. Berg
Anti-Catholicism And Modern Church-State Relations, Thomas C. Berg
Loyola University Chicago Law Journal
No abstract provided.
The Constitutional Flaws In The New Illinois Religious Freedom Restoration Act: Why Rfras Don't Work, Mary Jean Dolan
The Constitutional Flaws In The New Illinois Religious Freedom Restoration Act: Why Rfras Don't Work, Mary Jean Dolan
Loyola University Chicago Law Journal
No abstract provided.
The Supreme Court's Missed Opportunity: The Constitutionality Of Student-Led Graduation Prayer In Light Of The Crumbling Wall Between Church And State, Nancy E. Drane
Loyola University Chicago Law Journal
No abstract provided.
Reconciling Religious Rights & Responsibilities, Barbara L. Kramer
Reconciling Religious Rights & Responsibilities, Barbara L. Kramer
Loyola University Chicago Law Journal
No abstract provided.
The Supreme Court's Jurisprudence Of Religious Symbol And Substance, David L. Gregory, Charles J. Russo
The Supreme Court's Jurisprudence Of Religious Symbol And Substance, David L. Gregory, Charles J. Russo
Loyola University Chicago Law Journal
No abstract provided.
Saving Our Children: Focusing The World's Attention On The Abuse Of Children, Robert F. Drinan S.J.
Saving Our Children: Focusing The World's Attention On The Abuse Of Children, Robert F. Drinan S.J.
Loyola University Chicago Law Journal
No abstract provided.
A History Of Religious Freedom In Italy, Francesco Cossiga
A History Of Religious Freedom In Italy, Francesco Cossiga
Loyola University Chicago Law Journal
No abstract provided.
A Small Departure From The Truth: When Private Religious Speech Runs Afoul Of The Establishment Clause, Raymond W. Mitchell
A Small Departure From The Truth: When Private Religious Speech Runs Afoul Of The Establishment Clause, Raymond W. Mitchell
Loyola University Chicago Law Journal
No abstract provided.
Baumgartner V. First Church Of Christ, Scientist: Religious Healers' Exemption From Liability, Rebecca Carlins
Baumgartner V. First Church Of Christ, Scientist: Religious Healers' Exemption From Liability, Rebecca Carlins
Loyola University Chicago Law Journal
No abstract provided.
A Reconsideration Of The Religious Exemption: The Need For Financial Disclosure Of Religious Fund Raising And Solicitation Practices, Bruce J. Rakay, Roger P. Sugarman
A Reconsideration Of The Religious Exemption: The Need For Financial Disclosure Of Religious Fund Raising And Solicitation Practices, Bruce J. Rakay, Roger P. Sugarman
Loyola University Chicago Law Journal
No abstract provided.