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How The Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence, Andrew D. Cohen Nov 2011

How The Establishment Clause Can Influence Substantive Due Process: Adultery Bans After Lawrence, Andrew D. Cohen

Fordham Law Review

Criminal adultery bans, despite widespread transgression and lax enforcement, remain on the books in a substantial minority of states. The landmark Lawrence v. Texas decision casts doubt on all state interference with consensual sexual activity among adults, including adultery bans. Additionally, adultery bans on their face implicate the Establishment Clause, due to adultery bans' and marriage's roots in religious doctrine and religiosity. This Note examines the constitutionality of adultery bans after Lawrence v. Texas, and proposes a novel approach to substantive due process analysis that applies Establishment Clause values. In proposing what this Note dubs the "Establishment Clause prism," through …


Newdow V. Rio Linda Union School Disctrict: Religious Coercion In Public Schools Unconstitutional Despite Voluntary Nature Of Partially Patriotic Activity, Daniel D. Blom Jun 2011

Newdow V. Rio Linda Union School Disctrict: Religious Coercion In Public Schools Unconstitutional Despite Voluntary Nature Of Partially Patriotic Activity, Daniel D. Blom

Golden Gate University Law Review

This Note examines Newdow v. Rio Linda Union School District and explains why California Education Code Section 52720 and the School District’s policy of reciting the Pledge violate the Establishment Clause. Part I discusses the background facts and procedural history of the case and the three tests that were developed by the United States Supreme Court to analyze Establishment Clause challenges. Part II examines the Ninth Circuit’s application of the three Establishment Clause tests to the facts of this case. Finally, Part III explains why the Coercion Test is the determinative test in the context of government action in public …


The Myth Of Church-State Separation, David E. Steinberg Jan 2011

The Myth Of Church-State Separation, David E. Steinberg

Cleveland State Law Review

This article asserts that the church-state separation interpretation of Establishment Clause history is simply wrong. The framers were focused on the first five words of the amendment, which read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The original Establishment Clause was a guarantee that the federal government would not interfere in state regulation of religion-whatever form that state regulation took. Rather than enacting the Establishment Clause to mandate a separation of church and state, the framers adopted the clause to protect divergent state practices-including state establishment of …