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Articles 1 - 30 of 348
Full-Text Articles in Law
Originalism V. Originalism: How James Madison's Understanding Of The Establishment Clause Can Help Combat Christian Nationalism, Patrick Sawyer
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
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
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
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 …
A More Capacious Concept Of Church, Philip Hackney, Samuel D. Brunson
A More Capacious Concept Of Church, Philip Hackney, Samuel D. Brunson
Articles
United States tax law provides churches with extra benefits and robust protection from IRS enforcement actions. Churches and religious organizations are automatically exempt from the income tax without needing to apply to be so recognized and without needing to file a tax return. Beyond that, churches are protected from audit by stringent procedures. There are good reasons to consider providing a distance between church and state, including the state tax authority. In many instances, Congress granted churches preferential tax treatment to try to avoid excess entanglement between church and state, though that preferential treatment often just shifts the locus of …
Religious Liberty Interest Convergence, Asma T. Uddin
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. …
Natural Law And Universal Human Rights, David F. Forte
Natural Law And Universal Human Rights, David F. Forte
Law Faculty Articles and Essays
Abdullahi An-Na'im has set his life's quest on attempting to find a way that Muslim society can be attuned to the moral commands of the Universal Declaration of Human Rights, a Western creation. At present, the Shari'a and the Declaration are in obvious tension, if not conflict, in areas such as freedom of religion and the rights of women. An-Na'im finds that the Shari 'a is a creation of man derived in history from an interpretation of Islamic sources. Muslims today can legitimately develop their own interpretation relying on the root sources of Islam, but only so long as those …
Debunking “De Minimis” Violations Of Prisoners’ Religious Rights: Further Problems With The Supreme Court’S “Hands Off” Approach, Samantha Sparacino
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
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 …
Masterpiece's Equal Treatment Of The Religious And Expressive Freedoms Under The First Amendment, Hwi Won Kim
Masterpiece's Equal Treatment Of The Religious And Expressive Freedoms Under The First Amendment, Hwi Won Kim
Maurer Theses and Dissertations
This thesis aims at examining the validity of free speech claims for religious exemptions on the one hand and reviewing the Masterpiece Court's holdings on the current complex entanglement of religious exemption theories, on the other hand; and finally, it also provides a possible suggestion for co-existing between two constitutional values without an all-or-nothing solution.
As to the free speech argument, the Court would likely decide that a compelled speech argument should succeed if, and only if, the vendor’s good or service is expressive under the Free Speech Clause. For a baker, the Court would protect making a custom cake …
A Democratic Political Economy For The First Amendment, Nelson Tebbe
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.
Dialectics Of The Right To Freedom Of Religion Or Belief, Peter G. Danchin
Dialectics Of The Right To Freedom Of Religion Or Belief, Peter G. Danchin
Faculty Scholarship
No abstract provided.
The United States International Religious Freedom Act, Nonstate Actors, And The Donbas Crisis, Robert C. Blitt
The United States International Religious Freedom Act, Nonstate Actors, And The Donbas Crisis, Robert C. Blitt
Scholarly Works
This chapter explores whether recent changes to the International Religious Freedom Act (IRFA) furnish the U.S. government with effective tools for engaging with and taking potential action against nonstate actors, such as the self-proclaimed Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR), operating in the context of the Donbas crisis. Among the major amendments to IRFA introduced at the end of 2016, the statute now provides the U.S. government with the formal obligation to report on violent nonstate actors (NSAs) found to be violating freedom of religion or belief. In addition, the executive branch may designate those NSAs …
American Legion V. American Humanist Association, Seth T. Bonilla
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
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
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.
Litigation, Liberty, And Legitimation: The Experience Of The Church Of Scientology In Australian Law, Bernard Doherty, James T. Richardson
Litigation, Liberty, And Legitimation: The Experience Of The Church Of Scientology In Australian Law, Bernard Doherty, James T. Richardson
Law Papers and Journal Articles
Freedom of religion, the paradigm of freedom of conscience, is of the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint.
The Struggle Of Kosovo Policymakers To Upgrade The Law On Religious Affairs, Jeton Mehmeti
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 …
The International Religious Freedom Act: Non-State Actors And Freedom From Sovereign Government Control, Robert C. Blitt
The International Religious Freedom Act: Non-State Actors And Freedom From Sovereign Government Control, Robert C. Blitt
Scholarly Works
The International Religious Freedom Act (IRFA) recently underwent its most significant amendment process since being introduced in 1997. Among the major changes, sponsors of the Frank R. Wolf International Religious Freedom Act (Wolf Act) proposed adding a new framework to IRFA intended to address the phenomenon of non-state actors (NSAs) violating the right to freedom of religion or belief. The impetus for this new mandate, according to the bill’s sponsors, flowed from the realization that NSAs such as the Islamic State in Iraq and Syria (ISIS or ISIL) were wielding religious intolerance to commit “some of the most egregious religious …
The United States International Religious Freedom Act, Nonstate Actors, And The Donbas Crisis, Robert C. Blitt
The United States International Religious Freedom Act, Nonstate Actors, And The Donbas Crisis, Robert C. Blitt
Book Chapters
This chapter explores whether recent changes to the International Religious Freedom Act (IRFA) furnish the U.S. government with effective tools for engaging with and taking potential action against nonstate actors, such as the self-proclaimed Donetsk People’s Republic (DPR) and the Luhansk People’s Republic (LPR), operating in the context of the Donbas crisis. Among the major amendments to IRFA introduced at the end of 2016, the statute now provides the U.S. government with the formal obligation to report on violent nonstate actors (NSAs) found to be violating freedom of religion or belief. In addition, the executive branch may designate those NSAs …
Treading On Sacred Land: First Amendment Implications Of Ice's Targeting Of Churches, Gabriella M. D'Agostini
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 …
Quiet-Revolution Rulings In Constitutional Law, Dan T. Coenen
Quiet-Revolution Rulings In Constitutional Law, Dan T. Coenen
Scholarly Works
The Supreme Court ordinarily supports its establishment of major constitutional principles with detailed justifications in its opinions. On occasion, however, the Court proceeds in a very different way, issuing landmark pronouncements without giving any supportive reasons at all. This Article documents the recurring character and deep importance of these “quietrevolution rulings” in constitutional law. It shows that—however surprising it might seem—rulings of this sort have played key roles in shaping incorporation; reverse incorporation; congressional power; federal courts; and freedom-ofspeech, freedom-of-religion, and equal-protection law. According to the synthesis offered here, these rulings fall into two categories. One set of cases involves …
The California Consumer Privacy Act Of 2018: Are Your Interests At Stake?, Golden Gate University School Of Law
The California Consumer Privacy Act Of 2018: Are Your Interests At Stake?, Golden Gate University School Of Law
GGU Law Review Blog
In recent years, the Supreme Court has recognized the downturn of consistent and reliable Establishment Clause jurisprudence. The inconsistency of opinions and the often hostile outcomes have left the Establishment Clause in “shambles”. Justices have commented that there is no other area of law in more desperate need of repair than the Establishment Clause. One reason posited for the current state of confusion is that the Establishment Clause was never intended to be incorporated. Because of this, even the Supreme Court cannot agree on a single test or even consistently apply the many tests it currently employs.
Restoring The Establishment Clause To The States; Restoring Religious Tolerance, Golden Gate University Law Review
Restoring The Establishment Clause To The States; Restoring Religious Tolerance, Golden Gate University Law Review
GGU Law Review Blog
In recent years, the Supreme Court has recognized the downturn of consistent and reliable Establishment Clause jurisprudence. The inconsistency of opinions and the often hostile outcomes have left the Establishment Clause in “shambles”. Justices have commented that there is no other area of law in more desperate need of repair than the Establishment Clause. One reason posited for the current state of confusion is that the Establishment Clause was never intended to be incorporated. Because of this, even the Supreme Court cannot agree on a single test or even consistently apply the many tests it currently employs.
Rfra As Legislative Entrenchment, Branden Lewiston
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 …
A King Who Devours His People: Jiang Zemin And The Falun Gong Crackddown: A Bibliography, Michael J. Greenlee
A King Who Devours His People: Jiang Zemin And The Falun Gong Crackddown: A Bibliography, Michael J. Greenlee
Michael Greenlee
In July 1999, the government of the People’s Republic of China (PRC) and the Chinese Communist Party (CCP) began an official crackdown against the qigong cultivation group known as Falun Gong. Intended to quickly contain and eliminate what the PRC considers an evil or heretical cult (xiejiao), the suppression has instead created the longest sustained and, since the Tiananmen Square protests of June 1989, most widely known human rights protest conducted in the PRC. The Falun Gong has received worldwide recognition and support while the crackdown continues to provoke harsh criticism against the PRC as new allegations of human rights …
"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 …
How To Think About Religious Freedom In An Egalitarian Age, Nelson Tebbe
How To Think About Religious Freedom In An Egalitarian Age, Nelson Tebbe
Nelson Tebbe
No abstract provided.
Revisiting The American Church-State Relationship: The Trinity Lutheran Church Case, Jack Van Der Slik
Revisiting The American Church-State Relationship: The Trinity Lutheran Church Case, Jack Van Der Slik
Pro Rege
No abstract provided.