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Full-Text Articles in Law
Reclaiming Establishment: Identity And The ‘Religious Equality Problem’, Faraz Sanei
Reclaiming Establishment: Identity And The ‘Religious Equality Problem’, Faraz Sanei
Faculty Scholarship
Since at least 2017, the Court has implicitly recognized a right of equal access to generally available public benefits based on the beneficiary's religious identity or status. In Carson v. Makin (2022), the Court went a step further and, for the first time, concluded that the “status-use distinction lacks a meaningful application” in both theory and practice. It then held that restrictions on the use of public benefits for sacral purposes amount to religious discrimination because they impose substantial burdens on free exercise rights. Carson's holding, and the rationale underlying it, contravene settled case law and effectively gut the Establishment …
With Religious Liberty For All: A Defense Of The Affordable Care Act's Contraception Coverage Mandate, Frederick Mark Gedicks
With Religious Liberty For All: A Defense Of The Affordable Care Act's Contraception Coverage Mandate, Frederick Mark Gedicks
Faculty Scholarship
The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One's religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs …
Reconstructing The Blaine Amendments, Frederick Mark Gedicks
Reconstructing The Blaine Amendments, Frederick Mark Gedicks
Faculty Scholarship
In the wake of the Supreme Court's decision upholding school vouchers in Zelman v. Simmons-Harris, school choice proponents have turned their attention to the state Blaine Amendments. Blaine Amendments are contained in 37 state constitutions, and are modeled after a failed federal constitutional amendment sponsored by James G. Blaine in 1876 that would have prohibited the states from allocating state funds and other resources to sectarian organizations. Thus, even though Zelman appears to have removed all federal Establishment Clause impediments to properly structured school choice programs, Blaine Amendments continue to stand in the way of such programs.
The validity of …
Quo Vadis: The Status And Prospects Of Tests Under The Religion Clauses, Kent Greenawalt
Quo Vadis: The Status And Prospects Of Tests Under The Religion Clauses, Kent Greenawalt
Faculty Scholarship
As the 1994 term drew to a close, "tests" for the Religion Clauses were in nearly total disarray. Apart from cases of discrimination against religions, and disputes over church property, a student of the Supreme Court's jurisprudence could not formulate any general tests that a majority of the Justices clearly support. As exciting as this state of affairs is for those who welcome uncertainty and change, it is disquieting for lawyers and clients, for judges who must decide free exercise and establishment claims, and for Supreme Court Justices who aspire to stable principles of adjudication. In this essay, I provide …