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Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing 'Armies Of Compassion' 2.0?, Linda C. Mcclain Dec 2021

Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing 'Armies Of Compassion' 2.0?, Linda C. Mcclain

Faculty Scholarship

Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it …


Secular Invocations And The Promise Of Religious Pluralism, Jay D. Wexler Apr 2021

Secular Invocations And The Promise Of Religious Pluralism, Jay D. Wexler

Faculty Scholarship

The Supreme Court has considered the constitutionality of “legislative prayer” twice, once in the 1983 case of Marsh v. Chambers and once in the 2014 case of Town of Greece v. Galloway. Although both of those cases upheld challenged invocation practices on the basis that such practices predated the adoption of the First Amendment, they also placed additional limits on the nature of such prayer programs, including that they be non-discriminatory, as Justice Kennedy explained in Town of Greece. In response to Justice Kennedy’s non-discrimination mandate, hundreds of secular individuals in the wake of Town of Greece asked to give …


Bigotry, Civility, And Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, Linda C. Mcclain Jan 2021

Bigotry, Civility, And Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, Linda C. Mcclain

Faculty Scholarship

In the U.S. and around the globe, concerns over a decline in civility and tolerance and a surge in lethal extremist violence motivated by hatred of religious and racial groups make condemning—and preventing—hatred and bigotry seem urgent. What meaning can the ideal of e pluribus unum (“out of many one”) have in this fraught and polarized environment? Within the U.S., a long line of jurists, politicians, and educators have invoked civic education in public schools as vital to preserving constitutional democracy and a healthy pluralism. How can schools carry out such a civic role in times of democratic discord and …


Brief Of Amici Curiae Legal Scholars In Support Of Equality In Support Of Respondents, Fulton V. City Of Philadelpha, Kyle Velte, David Cruz, Michael Higdon, Anthony Michael Kreis, Shirley Lin, Linda C. Mcclain Jan 2020

Brief Of Amici Curiae Legal Scholars In Support Of Equality In Support Of Respondents, Fulton V. City Of Philadelpha, Kyle Velte, David Cruz, Michael Higdon, Anthony Michael Kreis, Shirley Lin, Linda C. Mcclain

Faculty Scholarship

This Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents filed in Fulton v. City of Philadelphia addresses the propriety of an analogy to race discrimination in public accommodation cases involving sexual orientation discrimination. The race analogy in sexual orientation cases proceeds as follows: Advocates and judges widely agree that courts should, and would, reject a religious exemption claim by a public accommodation—such a foster care agency—seeking to turn away an African-American or interracial couple based on the public accommodation’s religious beliefs that Blacks are inferior to whites or that the races should not mix. …


The Women Of The Wall: A Metaphor For National And Religious Identity, Pnina Lahav Dec 2015

The Women Of The Wall: A Metaphor For National And Religious Identity, Pnina Lahav

Faculty Scholarship

The Women of the Wall wish to participate in communal prayer in the women’s section of the Western Wall in Jerusalem. Their practice is to pray as a group, wrap themselves in a tallit, and read from the Torah scroll. They represent Jewish pluralism in that their group includes Orthodox, Conservative, Reform and secular women. They represent openness to change in that they base their claims on Halakhic interpretation, thereby embracing the capacity of Jewish law to evolve. This article reviews the resistance of the religious and political establishment in Israel to their claim and their struggle, unsuccessful so far, …


Corporate Conscience And The Contraceptive Mandate: A Dworkinian Reading, Linda C. Mcclain May 2015

Corporate Conscience And The Contraceptive Mandate: A Dworkinian Reading, Linda C. Mcclain

Faculty Scholarship

When a closely-divided U.S. Supreme Court decided Burwell v. Hobby Lobby (2014), upholding a challenge by three for-profit corporations to the contraceptive coverage provisions (“contraceptive mandate”) of the Patient Protection and Affordable Care Act of 2010 (“ACA”), sadly missing in the flurry of commentary was the late Ronald Dworkin’s assessment. This essay asks, “What would Dworkin do?,” if evaluating that case as well as Wheaton College v. Burwell, in which, over a strong dissent by Justices Sotomayor, Ginsburg, and Kagan, the Court granted Wheaton College emergency relief from complying with ACA’s accommodation procedure for religious nonprofit organizations who object to …


Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain Jul 2014

Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain

Faculty Scholarship

This Article engages with Ronald Dworkin’s final book, Religion Without God, which proposes to shrink the size and importance of the fierce “culture wars” in the United States between believers and nonbelievers – theists and atheists – by separating out the “science” and “value” components of religion to show these groups that they share a “fundamental religious impulse.” Religion Without God also calls for framing religious freedom as part of a general right to ethical independence rather than a “troublesome” special right for religious people. This article compares the argumentative strategy of Religion Without God with prior Dworkin works, such …


Israel’S Rosit The Riveter: Between Secular Law And Jewish Law, Pnina Lahav May 2013

Israel’S Rosit The Riveter: Between Secular Law And Jewish Law, Pnina Lahav

Faculty Scholarship

In the world of Judaism, the “end of men” is not in sight. Surely, tectonic plates are sliding and shifting, and a great deal of change is unfolding, but men are fighting hard to keep patriarchy alive. Deep inside, the Orthodox patriarchal man may be motivated by the sheer impulse to maintain his power, but outwardly he projects a profound commitment to his religious law, the law of God. He believes that his fight is a noble one ordained by divine will and that God is on his side. The problem is global; it appears in every Jewish community around …


Some Thoughts On The First Amendment's Religion Clauses And Abner Greene's Against Obligation, With Reference To Patton Oswalt's Character 'Paul From Staten Island' In The Film Big Fan, Jay D. Wexler Apr 2013

Some Thoughts On The First Amendment's Religion Clauses And Abner Greene's Against Obligation, With Reference To Patton Oswalt's Character 'Paul From Staten Island' In The Film Big Fan, Jay D. Wexler

Faculty Scholarship

In this short contribution to a symposium held at Boston University in the fall of 2012, I review Abner Greene's recent book Against Obligation by considering whether Greene's broad theory of freedom from state obligations under the Free Exercise Clause of the First Amendment would protect the maniacal New York Giants fan "Paul from Staten Island," portrayed by the ridiculously talented Patton Oswalt in Robert Siegel's hilarious film "Big Fan." I also explain how I use the film in my Law and Religion class to teach the Free Exercise Clause and the deeply perplexing question of how the word "religion" …


Due Process In Islamic Criminal Law, Sadiq Reza Jan 2013

Due Process In Islamic Criminal Law, Sadiq Reza

Faculty Scholarship

Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …


Church And State: An Economic Analysis, Keith N. Hylton, Yulia Rodionova, Fei Deng Aug 2011

Church And State: An Economic Analysis, Keith N. Hylton, Yulia Rodionova, Fei Deng

Faculty Scholarship

What purpose is served by a government's protection of religious liberty? Many have been suggested, the most prominent of which center on the protection of freedom of belief and expression. However, since every regulation potentially interferes with religious freedom, it is useful to consider more concrete purposes that could suggest limits on the degree to which religious liberty should be protected. This paper focuses on the concrete economic consequences of state regulation of religion. We examine the effects of state regulation on corruption, economic growth, and inequality. The results suggest that laws and practices burdening religion enhance corruption. Laws burdening …


Government Disapproval Of Religion, Jay D. Wexler Jul 2011

Government Disapproval Of Religion, Jay D. Wexler

Faculty Scholarship

The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion. The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a …


Sandel On Religion In The Public Square, Hugh Baxter Jul 2011

Sandel On Religion In The Public Square, Hugh Baxter

Faculty Scholarship

In the final chapter of "Justice" (2009), Sandel calls for a “new politics of the common good,” which he presents as an alternative to John Rawls’s idea of public reason. Sandel calls “misguided” Rawls’s search for “principles of justice that are neutral among competing conceptions of the good life.” According to Sandel, “[i]t is not always possible to define our rights and duties without taking up substantive moral questions; and even when it’s possible it may not be desirable.” In taking up these moral questions, Sandel writes, we must allow specifically religious convictions and reasons into the sphere of public …


I'M A Laycockian! (For The Most Part), Jay D. Wexler Jan 2011

I'M A Laycockian! (For The Most Part), Jay D. Wexler

Faculty Scholarship

You know you’ve made it, scholarly-wise speaking, when a major publishing house and a preeminent university approach you to ask whether they could publish a four-volume set of your collected works. Such is the situation of Douglas Laycock (DL), long-time Professor at the University of Texas School of Law, now moving from the University of Michigan to the University of Virginia and most certainly on just about everyone’s short list of greatest church–state scholars of the past quarter-century. Volume One of the collection was published in 2010; it is subtitled “Overviews & History” and contains roughly forty pieces written by …


Eagle Party, Jay D. Wexler Jan 2011

Eagle Party, Jay D. Wexler

Faculty Scholarship

The Rocky Mountain Arsenal National Wildlife Refuge is a straight shot up Havana Street off of I-70 just east of downtown Denver, past an Office Depot and the national headquarters of a company called Scott’s Liquid Gold. No signs point to the Refuge, which was created on the site of a chemical munitions facility back in the mid-1990s and is now home to a herd of bison, dozens of burrowing owls, and so many furry prairie dogs that a roadside sign warns oncoming traffic of their potential “XING.” The entrance is hardly inviting, although the officer working the booth there …


Religious And Political Virtues And Values In Congruence Or Conflict?: On Smith, Bob Jones University, And Christian Legal Society, Linda C. Mcclain Jan 2011

Religious And Political Virtues And Values In Congruence Or Conflict?: On Smith, Bob Jones University, And Christian Legal Society, Linda C. Mcclain

Faculty Scholarship

A basic tension in the U.S. constitutional and political order exists between two important ideas about the relationship between civil society and the state: (1) families, religious institutions, voluntary associations, and other groups are foundational sources, or “seedbeds,” of virtues and values that undergird constitutional democracy, and (2) these same institutions guard against governmental orthodoxy and overweening governmental power by generating their own distinctive virtues and values and by being independent locations of power and authority. The first idea envisions a comfortable congruence between civil society and government: the values and virtues - and habits and skills - cultivated in …


Intelligent Design And Judicial Minimalism: Further Thoughts On The 'Is It Science?' Question, Jay D. Wexler Jan 2009

Intelligent Design And Judicial Minimalism: Further Thoughts On The 'Is It Science?' Question, Jay D. Wexler

Faculty Scholarship

A few years ago, at a conference on religion in the public schools sponsored by the First Amendment Law Review at the University of North Carolina, I argued that although I thought Judge Jones' opinion in Kitzmiller' was mostly correct, the judge erred by deciding that Intelligent Design (ID) is not science. Although I continue to believe that teaching ID in public schools is unconstitutional-I have argued this point for a dozen years and will not reiterate my reasoning here -I also continue to agree with my original assessment of the judge's treatment of the so-called "is it science?" question. …


Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza Jan 2009

Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Faculty Scholarship

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …


Unleashing Or Harnessing 'Armies Of Compassion'?: Reflections On The Faith-Based Initiative, Linda C. Mcclain Jan 2008

Unleashing Or Harnessing 'Armies Of Compassion'?: Reflections On The Faith-Based Initiative, Linda C. Mcclain

Faculty Scholarship

A central tenet of President George W. Bush's faith-based initiative, launched in 2001, is that the federal government, by entering into more partnerships with religious and community organizations, should put the power of faith to work to solve pressing social problems. Proponents of the initiative have invoked the eighteenth-century French writer Alexis de Tocqueville's famous observations about the American propensity to join various voluntary associations as well as the Catholic principle of subsidiarity. Seven years into the faith-based initiative, challenging questions remain about what, exactly, it means to put faith to work. Such questions deserve attention, given the institutionalization of …


Protecting Religion Through Statute: The Mixed Case Of The United States, Jay D. Wexler Jan 2007

Protecting Religion Through Statute: The Mixed Case Of The United States, Jay D. Wexler

Faculty Scholarship

Various legislatures of the United States and those of other countries with transitional legal systems have much to learn from U.S. Congress's mixed record of protecting religious freedom through statute. While legal systems and religious culture differ tremendously worldwide, some general lessons transcend these variances. In this context, the successes and failures of the Religious Freedom Restoration Act, or RFRA, (1993) and Title VII of the Civil Rights Act (1964) are analyzed. Five major conclusions are reached, which focus on the danger of ambiguity and the need for clarity and strictness in order to prove a religious protection act effective.


The Endorsement Court, Jay D. Wexler Jan 2006

The Endorsement Court, Jay D. Wexler

Faculty Scholarship

Since 1986, when William H. Rehnquist was confirmed as the sixteenth Chief Justice of the United States, the Supreme Court has virtually rewritten the entire law regarding the First Amendment’s Religion Clauses. With respect to the Free Exercise Clause, the Court, in its 1990 Employment Division v. Smith decision, reversed years of jurisprudence and held that the First Amendment does not entitle religious believers to exemptions from neutral laws of general application. On the Establishment Clause side, the Court recently overturned a series of its earlier decisions on its way to creating a body of law quite amenable to the …


Kitzmiller And The "Is It Science?" Question, Jay D. Wexler Jan 2006

Kitzmiller And The "Is It Science?" Question, Jay D. Wexler

Faculty Scholarship

When Judge John E. Jones, III, a United States District Court judge appointed by President George W. Bush, ruled that the Dover school board's intelligent design (ID) policy violated the Establishment Clause, ID opponents were ecstatic. They had good reason to be. The opinion was a comprehensive and complete victory for ID opponents. The decision held that the policy was an unconstitutional endorsement of religion when viewed both from a reasonable Dover student's perspective as well as from the perspective of a reasonable adult in the Dover community. It also held that the policy was adopted for a religious purpose, …


Too Much, Too Little: Religion In The Public Schools, Jay D. Wexler Jan 2006

Too Much, Too Little: Religion In The Public Schools, Jay D. Wexler

Faculty Scholarship

The current state of religion in the nation's public schools is odd indeed. On the one hand, the courts have consistently held that public school teachers may not lead their students in an organized prayer. Yet on the other hand, most people seem to agree that there is no problem with those same teachers leading their students in the Pledge of Allegiance, an exercise that asks students on a daily basis, not only to explicitly recognize the existence of a single god, but also to link the nation's very identity to that highly contested theological proposition. Likewise, despite the fact …


The Scopes Trope, Jay D. Wexler Jan 2005

The Scopes Trope, Jay D. Wexler

Faculty Scholarship

In his book, Where Darwin Meets the Bible: Creationists and Evolutionists in America, journalist Larry Witham introduces the reader to the various characters involved in the ongoing controversy over evolution and creationism. His account is subtle and nuanced, and he demonstrates that the controversy is more complicated than many believe. Far from caricatures of godless scientists seeking to discard religion in thedustbin of history and reactionary religious fundamentalists decrying Darwinism as the downfall of mankind, Witham gives us the real stories of real people who dwell in shades far more gray than usually recognized. This book review builds upon Witham's …


Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler Jan 2003

Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler

Faculty Scholarship

The controversy over teaching evolution in public schools is once again hot news. Ever since the Supreme Court decided in 1987 that Louisiana could not constitutionally require teachers to give equal time to teaching creation science and evolution, critics of evolution have adopted a variety of new strategies to change the way in which public schools present the subject to their students. These strategies have included teaching evolution as a "theory" rather than as a fact, disclaiming the truth of evolutionary theory, teaching arguments against evolution, teaching the allegedly nontheistic theory of intelligent design instead of creationism, removing evolution from …


Framing The Public Square, Jay D. Wexler Jan 2002

Framing The Public Square, Jay D. Wexler

Faculty Scholarship

For at least the past decade or so, law-and-religion scholars have vigorously debated the issue of whether it is proper for American citizens to rely on religious reasons when talking about and reaching decisions on issues of public concern, including law. Those who argue that religion should be kept out of such decisionmaking and discourse contend that reliance on religious reasons: (1) violates principles of separation of church and state, (2) unfairly excludes nonbelievers from meaningful participation in public discourse, (3) creates unacceptable divisiveness, and (4) risks the domination of Christian beliefs in public discourse to the detriment of religious …


Preparing For The Clothed Public Square: Teaching About Religion, Civic Education, And The Constitution, Jay D. Wexler Jan 2002

Preparing For The Clothed Public Square: Teaching About Religion, Civic Education, And The Constitution, Jay D. Wexler

Faculty Scholarship

Although law and religion scholars have long argued about whether American culture marginalizes religious belief, many important indicators suggest that religion indeed plays a prominent role in contemporary American life. America is an extremely religious nation. Polls consistently show that about ninety percent of Americans continue to believe in God, and both church attendance and membership remain at high levels. This religiosity, moreover, spills out into the public square. A great many Americans rely on religious reasons when thinking and talking about public issues. Ninety percent of the members of Congress, by one report, consult their religious beliefs when voting …


Book Preface, Hendrik Hartog, Thomas A. Green Jan 1999

Book Preface, Hendrik Hartog, Thomas A. Green

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

At her death in December 1997, Betsy Clark had been working for more than a dozen years on a study tentatively entitled "Women, Church and State: Religion and the Culture of Individual Rights in Nineteenth-Century America." Between 1987 and 1995, several of the planned chapters had appeared in law reviews and in history journals. Another chapter had been written and revised before and during the first stages of her illness. Two chapters can be found in preliminary form in her 1989 Princeton dissertation and had been presented to a colloquium at Harvard Law School. But other chapters planned for the …


Chapter 2 - Anticlericalism And Antistatism, Elizabeth B. Clark Jan 1999

Chapter 2 - Anticlericalism And Antistatism, Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

Note: This is the first draft of the second chapter of a manuscript which through the lens of abolitionism and women's rights, traces the transformation of the ideology of individual rights over the course of the nineteenth century as it expanded to encompass, not just rights in the civil sphere, but rights of the person in private life. Part I of this paper examines nineteenth-century intellectual movements that located moral authority in the individual; Part II outlines the attack on authority within liberal Protestantism; Part III traces the extension of that critique to the state; and Part IV discusses the …


Chapter 7 - Reflections On The Scholarship Of Elizabeth B. Clark, Kristin Olbertson, Carol Weisbrod, Christine Stansell, Martha Minow Jan 1998

Chapter 7 - Reflections On The Scholarship Of Elizabeth B. Clark, Kristin Olbertson, Carol Weisbrod, Christine Stansell, Martha Minow

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

Elizabeth Clark's essays on early nineteenth-century reform movements make a compelling case that abolitionists and feminists alike understood individual rights from a profoundly religious perspective. Clark also demonstrates how these reformers advocated the protection of so-called "natural rights" for enslaved African-Americans and white women in the vivid and fervently emotional language of evangelical revivalism. Broader cultural and intellectual trends of resistance to governmental and clerical authority, trends rooted in liberal and evangelical Protestantism, Clark argues, helped fuel attacks on slavery and gender inequality. Rejecting other historians' portrayals of the antebellum reformers as primarily secular in orientation, Clark makes the arresting, …