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"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 …


Establishment Clause Incorporation: A Logical, Textual, And Historical Defense, Frederick Mark Gedicks Feb 2012

Establishment Clause Incorporation: A Logical, Textual, And Historical Defense, Frederick Mark Gedicks

Frederick Mark Gedicks

Incorporation of the Establishment Clause against the states is logically and textually impossible—so say most academics, many lower-court judges, and a Supreme Court justice. They maintain that because the Clause was originally understood as a mere structural protection of state power, it cannot coherently restrain state power or protect a personal due process liberty. Anti-incorporationists also seem to think that the purported incoherence and textual inconsistency of Establishment Clause incorporation excuse serious engagement of Reconstruction history, since they mostly ignore it except for the Blaine Amendment defeated as the Reconstruction era ended. If anti-incorporation critics are right, the entire body …