Law Commons^™

A Judicial Postscript On The Church-State Debates Of 1989: How Porous The Wall, How Civil The State?, William W. Van Alstyne

Faculty Publications

This work is a continuation of the debate regarding the Establishment Clause. The focus lies with Justice O’Connor’s concurrence in County of Allegheny v. ACLU and how this opinion harkens back to a concept shared by Jefferson and Madison, that the establishment clause is designed to prevent government favoritism.

The War On Drugs And Denominational Preferences: Farewell To Strict Scrutiny Analysis, Jeffrey T. Lawrence

BYU Law Review

No abstract provided.

Michigan's Teacher Certification Requirement As Applied To Religiously Motivated Home Schools, Donald D. Dorman

University of Michigan Journal of Law Reform

This Note defends the thesis that the teacher-certification requirement of Michigan's compulsory attendance statute is unconstitutional as applied to people who, for sincere religious reasons, believe they must teach their children at home. Michigan courts have incorrectly applied a rational-basis test in regulating religiously motivated home schools, rather than the strict scrutiny required by the U.S. Supreme Court for cases involving both the free exercise of religion and parents' interest in directing their children's education.

The Constitutional Admissibility Of Confessions Induced By Appeals To Religious Belief, Richard E. Durfee Jr.

Brigham Young University Journal of Public Law

No abstract provided.

The Constitutionality Of Ceremonial Invocations Given At Public High School Football Games Under An Equal Access Plan: Jager V. Douglas County School District, Rory L. Whipple

Brigham Young University Journal of Public Law

No abstract provided.

Rawls On Political Community And Principles Of Justice, James W. Nickel

Articles

No abstract provided.

How To Govern A City On A Hill: The Early Puritan Contribution To American Constitutionalism, John Witte Jr.

Faculty Articles

This Article explores briefly the constitutional ideas and institutions of seventeenth-century Puritan New England. It analyzes the constitutional ideas that the Puritans derived from their theological doctrines of covenant, church and state, and sin, and it examines the forms and functions of political and ecclesiastical government they devised in implementation of these ideas.

Deductibility Of Mandatory Donations To Religious Organizations Under The Internal Revenue Code, Sandra Machan

Akron Tax Journal

Church of Scientology members discovered their "inner selves" through "auditing" I and studied Church doctrines and tenets during "training" sessions. To participate in the auditing and training sessions, members paid mandatory or fixed fees to the Church.

In a recent United States Supreme Court Case, the Court considered whether the mandatory donations made to the Church of Scientology constituted a charitable deduction. The Court determined that the members made the mandatory donations with the expectation of a commensurate return benefit (i.e., a quid pro quo). and disallowed the charitable contribution deductions.

Although the Court's decision to disallow the deductions affected …

Constitutional Law—Freedom Of Religion—Requiring Reports Of Religious Counseling Sessions Under Child Abuse Reporting Statutes Does Not Violate The First Amendment. State V. Motherwell, 114 Wash. 2d 353, 788 P.2d 1066 (1990)., Mona J. Mcnutt

University of Arkansas at Little Rock Law Review

No abstract provided.

State Action Under The Religion Clauses: Neutral In Result Or Neutral In Treatment?, David K. Dewolf

University of Richmond Law Review

The United States Supreme Court's treatment of the first amendment's religion clauses over the last fifty years has generated considerable controversy. While few religion clause cases reached the Supreme Court prior to 1940, the number steadily multiplied once the first amendment was incorporated into the fourteenth amendment. The Court's doctrinal development was incremental and uncertain, but by 1971 the Court had developed a test for each of the religion clauses to evaluate the constitutionality of challenged state action. Although these tests have not been followed with perfect fidelity, they have been the starting point for virtually all of the religion …

Religious Convictions And Political Choice: Some Further Thoughts, Kent Greenawalt

Faculty Scholarship

Let me start by putting my topic in a concrete context. Suppose a statute is offered to relieve animals of the oppressively cramped conditions of modern factory farming. Advocates claim that calves, lambs, pigs, and chickens should have a better quality of life before being slaughtered for food. Opponents argue that factory farming helps provide tasty, inexpensive meat and that farmers should be free to decide how to treat animals that they own. At stake in the decision whether to restrict farmers is some balancing of animal interests against human interests. In our relatively wealthy society the human interests are …

The Lemon Test: Should It Be Retained, Reformulated Or Rejected?, Carl H. Esbeck

Faculty Publications

This essay addresses the Supreme Court's three-part establishment clause test originally set down in Lemon v. Kurtzman. Part I concerns the manner in which the Lemon test has substantially evolved. Part II explores what the evolved test has to offer by way of solving the seemingly conflicting duties not to inhibit free speech and political rights, while at the same time refraining from passing laws "respecting an establishment of religion." Finally, Part III addresses some of the proposals to supplant Lemon altogether.

First Freedom: Religion And The Bill Of Rights, Carl H. Esbeck

Faculty Publications

This volume is a collection of seven papers delivered at a symposium assembled in April 1989 upon the occasion, almost two hundred years hence, of the passage of the Bill of Rights by the First Congress. The unifying theme is stated to be the historical context of both Religion Clauses in the First Amendment, but the authors are driven primarily by Establishment Clause concerns. The Thrust of the essays deal with the originalism advanced during the years of Reagan Administration, and nonpreferentialism comes in for particular criticism, both pejoratively characterized as that "growing clamor".

Alive And Well: Religious Freedom In The Welfare State, Anita L. Allen

All Faculty Scholarship

No abstract provided.

A Commentary On Professor Fisher’S Thesis: Ideology, Religion, Private Property And The Supreme Court 1987-88, Howard Hunter

Research Collection Yong Pung How School Of Law

The most important lessons to be learned from Professor Fisher's paper are that the ideologies central to American law have roots in religious thought and that the influence of ideologies can be found throughout American law, perhaps most especially in judicial decisions. To these lessons we can add a third: the ideologies embodied in judicial decisions concerning private property in the period from the American Revolution to the Civil War are still with us. Three recent decisions of the United States Supreme Court' illustrate the continuing importance of the constitutional and ideological protection of private property, while offering an interesting …

Book Review Of Religion And The State: Essays In Honor Of Leo Pfeffer, By James E. Wood, Jr., Ruti G. Teitel

Other Publications

No abstract provided.

What Is A Church By Law Established?, M. H. Ogilvie

Osgoode Hall Law Journal

This paper examines one narrow question which is raised tangentially by virtue of the Constitution Act 1867, section 93 and the Constitution Act 1982, section 29 as interpreted by the Supreme Court of Canada in the Reference Re An Act to Amend the Education Act: what is an established church? It argues that when a single church alone enjoys constitutionally entrenched state support for its schools to the exclusion of all other religious groups, the real legal question is not about the legal protection of that church as a religious minority, especially when the recipient of state support is the …

Churches And The Free Exercise Of Religion, John H. Garvey

Scholarly Articles

The first amendment says that "Congress shall make no law . . . prohibiting the free exercise" of religion. This rule is most often used to protect individuals (religious speakers, pacifists, people claiming public benefits). This is hardly surprising. We naturally think that free exercise is an individual right, as we think that religion is a personal and private affair. I want to dispute (more modestly, to qualify) that view. I will argue that we should (sometimes) see the freedom of religion as a group right, which can conflict with, and take precedence over, individual rights.

Original Intent, History And Levy’S Establishment Clause. Book Review Of The Establishment Clause: Religion And The First Amendment, By Leonard W. Levy, Ruti Teitel

Articles & Chapters

No abstract provided.