Law Commons^™

Originalism V. Originalism: How James Madison's Understanding Of The Establishment Clause Can Help Combat Christian Nationalism, Patrick Sawyer

William & Mary Bill of Rights Journal

This Note will focus on what can be done to prevent Christian Nationalism from ending the Establishment Clause. Part I will focus on the cases that defined former Establishment Clause doctrine and how recent cases have done away with the parameters laid out in those earlier cases. Part II will focus on the understanding that James Madison had about the Establishment Clause. Part III will argue that Madison’s understanding of complete separation can and should be codified either under Congress’ enforcement power under the Fourteenth Amendment or the Spending Power of Article I. Part IV will consider how a statute …

Appendix B - Tax Funds For Religious Schools, Allan Walker Vestal

William & Mary Bill of Rights Journal

No abstract provided.

Tax-Funded Education Savings Account Payments To Religious Schools Violate State Constitution Compulsion Guarantees: The Iowa Example, Allan Walker Vestal

William & Mary Bill of Rights Journal

[...] This Article makes the unremarkable and conservative argument that the transfer of public funds to religious schools under Iowa’s education savings account program violates the Iowa Constitution’s compulsion guarantee.

We start by looking at the Iowa compulsion guarantee, including a review of the Iowa authorities which have construed it, the historical record and setting of its adoption, and the history of its New Jersey antecedent. We then introduce the education savings account mechanism by which Iowa’s religious schools stand to receive more than a third of a billion dollars annually by FY 2027. After that, we consider whether education …

Blocking Faith: How American Muslims Are Chilled Through The New Anti-Muslim Statutes And The Security Agencies’ Surveillance In The Era Of Digital Policing, Ahmed Al Rawi

Touro Law Review

This Article explores the legal repercussions resulting from the new wave of anti-Muslim statutes and the state monitoring operations on American Muslims’ First Amendment rights. This Article argues that the U.S. government security agencies’ surveillance operations (actions) that target American Muslims’ religious activities and the new anti-Muslim statutes (laws) established in various states are clear violations of Muslim Americans’ First Amendment rights.

Playing The Unfair Game: Apostates, Abuse & Religious Arbitration, Thomas Floyd

William & Mary Law Review

This Note argues that the Bixler [v. Superior Court] approach should become the standard for evaluating the enforceability of religious arbitration against ex-members. Courts should not enforce agreements to religious arbitration against ex-members of a faith when the relevant conduct occurred after their religious affiliation ended. The First Amendment right of believers to leave their faith should prevail over the First Amendment right of churches to police their internal religious doctrine. Siding with the institutions on this issue allows them the power to exert control over apostates in perpetuity through an unintended synergy of the First Amendment and …

Religious Liberty Interest Convergence, Asma T. Uddin

William & Mary Law Review

Americans are deeply polarized on a plethora of issues. One of the most prominent areas of polarization is religious liberty, which in recent years has increasingly pitted conservative, white Christians against a range of marginalized minorities, particularly Muslims. The divide threatens Muslims’ rights and the vitality of religious liberty more broadly. This Article assesses the extent to which self-interest— especially the self-interest of the conservative Justices of the Supreme Court—can help depolarize religious liberty.

Professor Derrick Bell’s theory of “interest convergence” helps connect different self-interests that, in turn, enable issue-specific coalitions strong enough to effect serious cultural and legal change. …

Debunking “De Minimis” Violations Of Prisoners’ Religious Rights: Further Problems With The Supreme Court’S “Hands Off” Approach, Samantha Sparacino

Touro Law Review

Circuits are split as there continues to be an inconsistent application of Supreme Court doctrine stemming from the notion of the separation of church and the state. Imprisonment does not strip a wrongdoer of his constitutionally guaranteed rights and protections. Some Circuits have held that a minor, or de minimis, interpretation of an inmate’s religious rights can constitute a substantial burden under the Religious Land Use and Institutionalized Persons Act. In the absence of clear direction from the Supreme Court, I propose that courts should refrain from determining the value of a religious belief or practice as it relates …

Secondary Meaning And Religion: An Analysis Of Religious Symbols In The Courts, Eric D. Yordy, Elizabeth Brown

William & Mary Bill of Rights Journal

In the Supreme Court’s most recent freedom of religion case, Justice Alito and Justice Ginsburg disagreed about the actual and potential meaning of the Latin cross, a traditional symbol of Christianity in which the upright leg of the cross is longer than the horizontal arms of the cross. Justice Alito stated that the Latin cross, while not losing its religious meaning, has acquired what might be called a “secondary meaning” as a symbol of World War I. He couched his analysis in language suggesting that a religious symbol’s meaning may depend on its circumstances. While he also denied that he …

A Democratic Political Economy For The First Amendment, Nelson Tebbe

Cornell Law Review

In this Article, I begin building an interpretation of the First Amendment that promotes the practical conditions for a vital democracy. I argue that considerations of distributive justice do properly affect interpretation of free speech and religious liberty. This is true even assuming that those provisions have priority over ordinary law, including economic regulation.

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

This Isn’T About You: A Comment On Smith’S Pagans And Christians In The City, Andrew Koppelman

San Diego Law Review

Andrew Koppelman’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City.

Absolute Freedom Of Mind And Regulating Actions: Tendency Of Case Law In The Supreme Court Of Japan, Hitoshi Miyahara

Japanese Society and Culture

We have absolute protection for our internal beliefs, but this never means the same protection for our external actions. So we have to decide which external actions are permitted, bearing in mind internal protection. Therefore, I introduce some cases of the Supreme Court of Japan (coercing apology, playing the piano accompaniment to Kimigayo, membership fee, Incantation to a mental patient based on religious belief, dissolving the religious corporation, absent from class on fathers’ visiting day and the Kendo lesson) that analyzed the relationship between thoughts and actions.

The Struggle Of Kosovo Policymakers To Upgrade The Law On Religious Affairs, Jeton Mehmeti

Occasional Papers on Religion in Eastern Europe

Apart from guarantees over freedom of religion, in the last two decades, authorities in Kosovo have made little progress in advancing its legal framework to accommodate the emerging needs of religious communities. The only law that regulates religious affairs in Kosovo is the 2006 Law on Freedom of Religion. The law is framed in very broad terms, and has received a lot of criticism for failing to properly regulate the status of religious communities. Representatives of these communities have consistently asked for changes to legislation that would grant them the status of legal entities. Without legal entity status, religious communities …

Treading On Sacred Land: First Amendment Implications Of Ice's Targeting Of Churches, Gabriella M. D'Agostini

Michigan Law Review

In the last few years, Immigration and Customs Enforcement (ICE) has begun to target religious institutions—specifically churches—as a means to find and arrest undocumented immigrants. This technique is in legal tension with the First Amendment rights of free exercise of religion and free association. It is unclear, however, how these legal rights protect those most affected by this targeting tactic: undocumented immigrants. Undocumented immigrants may lack standing to challenge ICE’s tactics on their own and may require the help of related parties to protect their interests.

This Note explores a potential solution to the ambiguity surrounding undocumented immigrants’ protection under …

Rfra As Legislative Entrenchment, Branden Lewiston

Pepperdine Law Review

When there is a conflict between two federal statutes, the more recent statute overrides the past statute. However, courts have used the Religious Freedom Restoration Act (RFRA) to preempt federal laws passed after it. Normally that is the role of constitutional provisions, not statutes. RFRA has been subject to much constitutional criticism, but its attempt to control subsequent federal law has drawn little attention. Courts use RFRA to trump subsequent federal statutes without second thought. This Essay draws on legislative entrenchment doctrine to argue that this feature of RFRA is unconstitutional. RFRA should be used to strike down prior laws …

"Living Together" Or Living Apart From Religious Freedoms? The European Court Of Human Right's Concept Of "Living Together" And Its Impact On Religious Freedom, Shelby Wade

Case Western Reserve Journal of International Law

In the 2014 monumental court decision S.A.S. v. France, the European Court of Human Rights ruled that the French law banning both burqas and niqabs in public spaces was justified. The Court based this justification on the concept of "living together," stating this newly-created concept allowed limitations on certain rights, such as the freedom of religion. With this decision, the Court vacated precedent which used a balancing test to weigh exceptions, such as national security in very narrow situations, against the limitations on individual freedoms. The new "living together" test is extremely farfetched, vague, and controversial. This Note discusses the …

Revisiting The American Church-State Relationship: The Trinity Lutheran Church Case, Jack Van Der Slik

Pro Rege

No abstract provided.

Catholic Institutions In Court: The Religion Clauses And Political-Legal Compromise, Angela C. Carmella

West Virginia Law Review

No abstract provided.

Putting Faith In Europe: Should The U.S. Supreme Court Learn From The European Court Of Human Rights?, Antony Barone Kolenc

Georgia Journal of International & Comparative Law

No abstract provided.

State Neutrality In Religious Affairs -- Civil Servants And Religious Dress, Simon Pelsmakher

Canada-United States Law Journal

This article examines the question of whether civil servants have the right to wear religious dress in Canada, the United States, and Europe.

It loos at different policies regarding the relationship between state neutrality and religious affairs, freedom of religion, and equality, and argues that civil servants should have the right to wear religious dress, without violating laws pertaining to neutrality.

Religious Majorities And Restrictions On Religion, Brett G. Scharffs

Notre Dame Law Review

Social scientists studying freedom of religion and belief have focused upon two types of restrictions on religious freedom, formal restrictions that take the form of laws and other official legal limitations on freedom of religion and belief, and informal restrictions that take the form of social hostilities towards religion or towards particular religious groups, usually minorities. This Article seeks to build upon this work in three ways: first, by noting the striking correlations between countries with very high or high legal restrictions and social hostilities regarding religion and the frequent presence of a dominant religious group in those countries; second, …

Master Metaphors And Double-Coding In The Encounters Of Religion And State, Perry Dane

San Diego Law Review

That term “existential encounter” is meant to convey several important ideas. First, it suggests that what is at stake here is not merely a set of legal doctrines or policy prescriptions, but something deeper and more constitutive. The sovereign nation-state, in some sense, looks out at the world around it and sees other entities that do not easily fit into its own internal sovereign architecture. Some of these are other nation-states. Some might be other types of essentially secular, but non-state, human associations. And others are, or should be, communities—large and small, organized or not, united or splintered—whose normative commitment …

Religious Institutionalism In A Canadian Context, Victor M. Muñiz-Fraticelli, Lawrence David

Osgoode Hall Law Journal

Does freedom of religion protect religious institutions or does it only protect the individual religious conscience? Canadian jurisprudence after the enactment of the Canadian Charter of Rights and Freedoms takes a decidedly individualist turn, deliberately avoiding the question of the rights of religious institutions. This individualist focus neglects the historical trajectory of religious freedom, the social understanding of religious faith by religious adherents themselves, and the institutional structures in which religion emerges and develops (and through which it is ultimately protected). An institutional account of religious liberty can complement the individualist account, as it better explains the legal order, better …

From Dysfunction And Polarization To Legislation: Native American Religious Freedom Rights And Minnesota Autopsy Law, Gail T. Kulick, Tadd M. Johnson, Rebecca St. George, Emily Segar-Johnson

Mitchell Hamline Law Review

No abstract provided.

Preliminary Injunctions, Excessive Entanglement, And Prior Restraints: Should Courts Treat Potential Pretrial Religious Infringement The Same As Potential Pretrial Speech Infringement?, Conor Reilly

ConLawNOW

The virtually absolute ban on prior restraints against speech is, of course, cemented in the Supreme Court’s Free Speech jurisprudence. But the doctrine may potentially apply to another important First Amendment Clause: Establishment. In free speech cases, courts almost always refuse to restrict expression prior to a determination that it is protected. This Article argues that the courts should apply the same principle in cases implicating religious liberty.

First, this Article examines a case in which a district court granted a preliminary injunction in favor of a religious group, but also imposed severe restrictions on the group’s ability to practice …

Ten Questions On Gay Rights And Freedom Of Religion, Wilson R. Huhn

ConLawNOW

I have prepared a series of ten questions that will progressively narrow the issues concerning gay rights and free exercise rights until we come to the principal point upon which Professor Dent and I disagree – the definition and application of the principle of equality.

George Washington. Elena Kagan, And The Town Of Greece, New York: The First Amendment And Religious Minorities, Kermit V. Lipez

The Journal of Appellate Practice and Process

No abstract provided.

Does Shari’A Play A Role In Turkey?, Russell Powell

Pepperdine Law Review

An essay is presented in which the author explores the relationship of religious law with contemporary Turkey. Topics discussed include certain civil law supporting adoption of Sharia in Turkey, role of religious people in providing protection to religious freedom in Turkey, and role of traditional Kemalist secularism laiklik in distinguishing Turkey.

Response: Situating Ourselves In History, Steven D. Smith

Pepperdine Law Review

The author presents his views on history of religious freedom incorporated in his Brandeis lecture and in the book "The Rise and Decline of American Religious Freedom." Topics discussed include hegemonic status of special protection to religious freedom for legal academics, role of ending religious freedom in providing protection to religious actors under other constitutional provisions like free speech, and impact of ending religious freedom on other freedom like freedom of association.

Theorists, Get Over Yourselves: A Response To Steven D. Smith, Andrew Koppelman

Pepperdine Law Review

In this article, the author presents his views in response to the article The Last Chapter? by critic of contemporary liberal theory Steven D. Smith in reference to his book "Defending American Religious Neutrality." Topics discussed include the political aspects associated with religious freedom, role of secularism in eroding religious freedom, and conflicts between religion and modern secular egalitarianism.