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Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino Feb 2014

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Frederick Mark Gedicks

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is somehow absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent. The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What …


"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell Sep 2013

"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell

Frederick Mark Gedicks

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked Establishment Clause limits on such exemptions. The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion—that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …


Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks Mar 2009

Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks

Frederick Mark Gedicks

Although formal religious tests for federal office are constitutionally prohibited, they have long been fact of political life in presidential elections. John Kennedy remains the only nonProtestant ever elected President. The “Judeo-Christian tradition” notwithstanding, no major party has ever nominated a Jew for president—let alone a Buddhist, Hindu, Mormon, Muslim, or unbeliever. Against this electoral history, it was perhaps predictable that mainstream Christian commentators would feel free to legitimate religious attacks on Mitt Romney during the Republican presidential primaries on the ground that Mormonism is a “false” religion. Ironically, however, the Mormon church periodically intervenes in initiative and ratification campaigns …


Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks Mar 2009

Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks

Frederick Mark Gedicks

Although formal religious tests for federal office are constitutionally prohibited, they have long been a fact of political life in presidential elections. John Kennedy remains the only nonProtestant ever elected President, and the major political parties have only nominated three others for president, all Democrats. The "Judeo-Christian tradition" notwithstanding, no major party has ever nominated a Jew for president-let alone a Buddhist, Hindu, Mormon, Muslim, or unbeliever. Against this electoral history, it was perhaps predictable that mainstream Christian commentators would feel free to legitimate religious attacks on Mitt Romney during the Republican presidential primaries on the ground that Mormonism is …


An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks Feb 2008

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Frederick Mark Gedicks

A longstanding scholarly consensus holds that the Due Process Clause of the Fifth Amendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, and the emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps. One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of “substantive” due process originated …


Uncivil Religion: Judeo Christianity And The Ten Commandments, Frederick Mark Gedicks Mar 2007

Uncivil Religion: Judeo Christianity And The Ten Commandments, Frederick Mark Gedicks

Frederick Mark Gedicks

I. INTRODUCTION: THE PERMISSIBLE ESTABLISHMENT? II. VARIETIES OF AMERICAN CIVIL RELIGION A. The Established Church B. “Nonsectarian” Protestantism C. Judeo-Christianity III. BEYOND JUDEO-CHRISTIANITY A. Unbelief and Eastern Religion B. Postmodern Spirituality C. Barely Believing IV. THE SECTARIANIZATION OF JUDEO-CHRISTIANITY A. The Decalogue Cases B. The Fiction of “Mere Acknowledgment” C. Sectarianization and the Return of Classic Tolerance V. CONCLUSION: THE PAST THAT IS NOT PRESENT The recent Decalogue Cases are the latest attempt to insulate American civil religion from Establishment Clause attack. A civil religion is a set of purportedly nondenominational symbols, rituals, and assumptions designed to create reverence of …