Law Commons^™

Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key …

Eclecticism, Nelson Tebbe

Cornell Law Faculty Publications

This short piece comments on Kent Greenawalt's new book, Religion and the Constitution: Establishment and Fairness. It argues that although Greenawalt's eclectic approach carries certain obvious costs, his theory cannot be evaluated without comparing its advantages and disadvantages to those of its competitors. It concludes by giving some sense of what that comparative calculus might look like.

The Equal Protection Of Free Exercise: Two Approaches And Their History, Bernadette Meyler

Cornell Law Faculty Publications

Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually intertwined. The seeds of an equal protection analysis of free exercise were, indeed, planted even before the Fourteenth Amendment within the constitutional jurisprudence of the several states. Furthermore, this Article argues, equal protection approaches should not be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection. By ignoring the lessons …

The Pluralistic Foundations Of The Religion Clauses, Steven H. Shiffrin

Cornell Law Faculty Publications

Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in …

Liberalism And The Establishment Clause, Steven H. Shiffrin

Cornell Law Faculty Publications

Every political theory tolerates some things and not others. Every political theory promotes a particular kind of person even if it denies it is doing so. But the best liberalism does not confine itself to promoting a Rawlsian-tolerant citizen. Liberalism, like conservatism, has greater ambitions in the socialization of the young. The best liberalism, a neo-Millian liberalism, promotes a creative, independent, autonomous, engaged citizen and human being who works with others to make for a better society and speaks out against unjust customs, habits, institutions, traditions, hierarchies, and authorities.

Although government may promote a particular conception of the good life, …