Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Keyword
-
- Establishment clause (5)
- Free exercise of religion (5)
- Equal protection (2)
- Religious freedom (2)
- Agnostics (1)
-
- Atheists (1)
- Burwell v. Hobby Lobby (1)
- Due process (1)
- Employment Division v. Smith (1)
- Free speech (1)
- Freedom of religion (1)
- Freedom of speech (1)
- Government speech (1)
- Kent Greenawalt (1)
- Marriage equality (1)
- Pleasant Grove City v. Summum (1)
- Religious liberty (1)
- Salazar v. Buono (1)
- Same-sex marriage (1)
- Secular humanists (1)
Articles 1 - 14 of 14
Full-Text Articles in Law
Eclecticism, Nelson Tebbe
Eclecticism, Nelson Tebbe
Nelson Tebbe
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.
Excluding Religion , Nelson Tebbe
Smith In Theory And Practice, Nelson Tebbe
Smith In Theory And Practice, Nelson Tebbe
Nelson Tebbe
Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and …
How To Think About Religious Freedom In An Egalitarian Age, Nelson Tebbe
How To Think About Religious Freedom In An Egalitarian Age, Nelson Tebbe
Nelson Tebbe
No abstract provided.
Free Exercise And The Problem Of Symmetry, Nelson Tebbe
Free Exercise And The Problem Of Symmetry, Nelson Tebbe
Nelson Tebbe
This Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a liberty component, shows how it would generate more attractive results than neutrality alone, and defends the liberty approach against likely objections. A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Under that rule, only laws and policies that have the purpose of discriminating against religion draw heightened scrutiny. All others are presumptively constitutional, regardless of how severely they burden religious practices. Critics have attacked the …
Nonbelievers, Nelson Tebbe
Nonbelievers, Nelson Tebbe
Nelson Tebbe
How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do. …
Religion And Marriage Equality Statutes, Nelson Tebbe
Religion And Marriage Equality Statutes, Nelson Tebbe
Nelson Tebbe
To date, every state statute that has extended marriage equality to gay and lesbian couples has included accommodations for actors who oppose such marriages on religious grounds. Debate over those accommodations has occurred mostly between, on the one hand, people who urge broader religion protections and, on the other hand, those who support the types of accommodations that typically have appeared in existing statutes. This article argues that the debate should be widened to include arguments that the existing accommodations are normatively and constitutionally problematic. Even states that presumptively are most friendly to LGBT citizens, as measured by their demonstrated …
Privatizing And Publicizing Speech, Nelson Tebbe
Privatizing And Publicizing Speech, Nelson Tebbe
Nelson Tebbe
When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum, which the Supreme Court decided earlier this year, and Buono, which it will hear in the fall. In both cases, the government manipulated formal property rules in order to fend off constitutional challenges. In Summum, the government took ownership of a religious symbol in the face of a free speech challenge, while in Buono it shed ownership of land containing another sectarian symbol in an effort to moot an Establishment Clause problem. Although …
Government Nonendorsement, Nelson Tebbe
Government Nonendorsement, Nelson Tebbe
Nelson Tebbe
What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …
Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe
Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe
Nelson Tebbe
No abstract provided.
Constitutional Borrowing, Nelson Tebbe, Robert Tsai
Constitutional Borrowing, Nelson Tebbe, Robert Tsai
Nelson Tebbe
No abstract provided.
Is The Constitution Special?, Nelson Tebbe, Christopher Serkin
Is The Constitution Special?, Nelson Tebbe, Christopher Serkin
Nelson Tebbe
No abstract provided.
Excluding Religion, Nelson Tebbe
Religion And Social Coherentism, Nelson Tebbe