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Full-Text Articles in Law

Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise May 2012

Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise

Michigan Law Review

As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in ...


Rluipa: What's The Use, Jason Z. Pesick Apr 2012

Rluipa: What's The Use, Jason Z. Pesick

Michigan Journal of Race and Law

After Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which protects religious land use, many observers feared that the legislation would allow religious organizations to flout land-use regulations. Because RLUIPA defines "religious exercise" broadly, these observers feared the law would protect an array of nonworship uses, including commercial ventures, as long as a religious entity owned the land. More than a decade after RLUIPA's passage, this Note concludes that courts have not interpreted religious exercise as broadly as those observers feared. Courts have not, however, settled on a clear or consistent way of interpreting ...


Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine Apr 2012

Towards A Balanced Approach For The Protection Of Native American Sacred Sites, Alex Tallchief Skibine

Michigan Journal of Race and Law

Protection of "sacred sites" is very important to Native American religious practitioners because it is intrinsically tied to the survival of their cultures, and therefore to their survival as distinct peoples. The Supreme Court in Oregon v. Smith held that rational basis review, and not strict scrutiny, was the appropriate level of judicial review when evaluating the constitutionality of neutral laws of general applicability even when these laws impacted one's ability to practice a religion. Reacting to the decision, Congress enacted the Relgious Freedom Restoration Act (RFRA), which reinstated the strict scrutiny test for challenges to neutral laws of ...


Civil Marriage: Threat To Democracy, Jessica Knouse Jan 2012

Civil Marriage: Threat To Democracy, Jessica Knouse

Michigan Journal of Gender & Law

This Article argues that civil marriage and democracy are inherently incompatible, whether assessed from a transcultural perspective that reduces them to their most universal aspects or a culturally situated perspective that accounts for their uniquely American elaborations. Across virtually all cultures, civil marriage privileges sexual partners by offering them exclusive access to highly desirable government benefits, while democracy presupposes liberty and equality. When governments privilege sexual partners, they effectively deprive their citizens of liberty by encouraging them to enter sexual partnerships rather than selfdetermining based on their own preferences; they effectively deprive their citizens of equality by establishing insidious status ...