Law Commons^™

"No Person . . . Shall Ever Be Molested On Account Of His Mode Of Worship Or Religious Sentiments . . . .": The Northwest Ordinance Of 1787 And Strader V. Graham, Allan W. Vestal

Marquette Law Review

The Article looks at the first article of compact of the Northwest Ordinance,

the religious liberty guarantee: “No person . . . shall ever be molested on

account of his mode of worship or religious sentiments . . . .” Congress

provided that the Northwest Ordinance articles of compact would “forever

remain unalterable.” But in a fugitive slave case from 1851, Strader v. Graham,

Chief Justice Roger Taney declared the articles of compact to be no longer in

force.

In evaluating Chief Justice Taney’s reasoning, the question posed at the

dawn of the 20th Century by historian Professor Andrew McLaughlin …

A Masterpiece Of Simplicity: Toward A Yoderian Free Exercise Framework For Wedding-Vendor Cases, Austin Rogers

Marquette Law Review

The Free Exercise Clause was enacted to protect diverse modes of religious

practice. Yet certain expressions of free exercise have entailed concomitant

harm to those outside the religious community, especially LGBTQ persons.

This trend has been acutely present in the recent onslaught of wedding-vendor

cases: LGBTQ persons seek the enforcement of statutorily protected rights,

while religious objectors seek refuge from state intrusion under constitutional

shelter. Consequently, wedding-vendor cases present an area of law in which

free-exercise jurisprudence and anti-discrimination jurisprudence have been

clashing.

However, despite the primacy of religious freedom and equal protection in

American jurisprudence, courts analyze wedding-vendor cases …

The Light Of Nature: John Locke, Natural Rights, And The Origins Of American Religious Liberty, Steven J. Heyman

Marquette Law Review

This Article explores John Locke’s theory of religious liberty, which deeply influenced the adoption of the First Amendment and the first state bills of rights. Locke sharply criticized the religious and political order of Restoration England—a regime in which the king claimed to hold absolute power by divine right and in which individuals were required by law to conform to the established church.

In opposition to this regime, Locke developed a powerful theory of human beings as rational creatures who were entitled to think for themselves, to direct their own actions, and to pursue their own happiness within the bounds …

God And State Preambles, Peter J. Smith, Robert W. Tuttle

Marquette Law Review

Those who question the permissibility of official acknowledgements of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing n the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.

The preambles complicate the claim that official acknowledgements of God are incompatible with …

The Supreme Court And Religious Liberty, Joseph D. Kearney

Marquette Law Review

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The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

Marquette Law Review

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

God And Guns: The Free Exercise Of Religion Problems Of Regulating Guns In Churches And Other Houses Of Worship, John M.A. Dipippa

Marquette Law Review

This Article demonstrates that the cases raising religious liberty challenges to state regulation of weapons in houses of worship reveal the persistent problems plaguing religious liberty cases. First, these cases illustrate the difficulties non-mainstream religious claims face. Courts may not understand the religious nature of the claim or they may devalue claims that do not seem “normal” or “reasonable.” This is compounded by how few religious liberty claimants, especially non-mainstream religions, win their cases. Second, the cases are part of the larger debate about how easy it should be to get judicially imposed religious exemptions from general and neutral laws. …

The Forgotten Jurisprudential Debate: Catholic Legal Thought's Response To Legal Realism, John M. Breen, Lee J. Strang

Marquette Law Review

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Are Catholic Bishops Seeking A Religious Preference Or Religious Freedom?, Ivan E. Bodensteiner

Marquette Law Review

Using the Catholic Bishops’ litigation strategy in challenging the Affordable Care Act as an example, this Article suggests that the Supreme Court’s interpretation of the First Amendment religion clauses has emboldened religious organizations to seek preferred treatment, i.e., “to become a law unto [themselves].” The religion clauses have a common goal, religious freedom, but they are often in tension and require a delicate balance. Beginning with the Rehnquist Court, and continuing with the Roberts Court, the interpretation of the religion clauses, in combination with the free speech clause, has eliminated the wall of separation between religion and government. The wall …