Law Commons^™

Religious Symbols And Religious Garb In The Courtroom: Personal Values And Public Judgments, Samuel J. Levine

Samuel J. Levine

As a nation that values and guarantees religious freedom, the United States is often faced with questions regarding the public display of religious symbols. Such questions have arisen in a number of Supreme Court cases, involving both Establishment Clause and Free Exercise Clause issues. Since 1984, the Court has considered the constitutionality of the display of religious symbols such as a creche, a menorah, and a cross in public areas. The Court has also considered the constitutionality of Air Force regulations that prohibited a clinical psychologist from wearing a yarmulke. Parallel to the Supreme Court cases, a number of federal …

Merry Season’S Controversy, Lorin Geitner

Lorin C. Geitner

Discussion of the infamous "Christmas Controversy" – the legality of religious symbols in holiday displays on public land. This issue is examined both from the viewpoint of an attorney and a scholar of religion: From a legal point of view, the article examines the holdings of three major Supreme Court cases which have addressed this issue. From the viewpoint of religious scholarship, the article examined the relevant sociology of religion, which is also an important factor in accounting for why, in spite of settled precedents, this issue remains controversial.

Standing On Holy Ground: How Rethinking Justiciability Might Bring Peace To The Establishment Clause, John M. Bickers

John M. Bickers

The Establishment Clause is home to both procedural and substantive disorder. Particularly in evaluating religious speech by the government, the Supreme Court applies any of a number of distinct tests, with varying degrees of strictness. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting lack of clarity leaves lower courts to their own devices in endeavoring to calm increasingly intense struggles. This article sets out a theory that altering one of these problems can correct …

Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum

Ian C Bartrum

This Colloquy piece explores the constitutional relationship between religious exercise and racial discrimination in the context of the "ministerial exception" and the Court's decision to hear arguments in Hosanna-Tabor v. EEOC.

“Command And Coercion”: Clerical Immunity, Scandal, And The Sex Abuse Crisis In The Roman Catholic Church, John F. Wirenius

John F. Wirenius

The sex abuse crisis in the Catholic Church has occasioned much scandal, but also much confusion, as trusted institutions and individuals seem to be willfully thwarting criminal investigation and prosecution of terrible crimes. This Article looks at the historical and theological underpinnings of the belief in clerical immunity from secular law, its role in the response to allegations of sexual abuse by clergy, and at the modern effort to engraft clerical immunity into the First Amendment’s Free Exercise Clause under the “Church Autonomy” doctrine.

Religion And Sports In The Undergraduate Classroom: A Surefire Way To Spark Student Interest, Adam Epstein

Adam Epstein

The purpose of this pedagogical piece is to present an opportunity to discuss religion in the context of sports as a means of generating classroom discussion and prompting extra-curricular reading on topics pertaining to business law primarily at the undergraduate level. A discussion of religion and sports provides one avenue to pursue exploration of the free exercise and establishment clauses. Examples are provided in the intercollegiate, interscholastic and professional sport contexts. The article also provides a brief primer on the First Amendment generally, outlining some of the classic Supreme Court cases. The article then discusses a series of cases involving …

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian C. Bartrum

Ian C Bartrum

This short piece discusses some doctrinal and theoretical implications of the Court's recent decision.

Foreword: Our Paradoxical Religion Clauses, Mark A. Graber

Mark Graber

No abstract provided.

When The Exception Becomes The Rule: Marsh And Sectarian Legislative Prayer Post-Summum, Scott W. Gaylord

Scott W. Gaylord

Across the country, federal, state, and local legislative bodies begin their meetings with prayer. Yet, as recent challenges to sectarian legislative prayer demonstrate, legislative prayer rests uneasily at the intersection of the Free Speech and Establishment Clauses. While the government has the right to speak for itself, many contend that it is precluded from engaging in paradigmatic religious activity, such as sectarian prayer. As a result, although legislative prayer has been part of the “fabric of our society” since at least the First Continental Congress, sectarian prayer teeters on the brink of unconstitutionality.

Despite the pervasiveness of legislative prayer and …

Abraham Baldwin And The Establishment Clause, Mark Chadsey

Mark J. Chadsey

Until recently, both courts and scholars have focused their discussion about the Founding Fathers’ role in the drafting and interpretation of the First Amendment’s Establishment Clause almost exclusively on James Madison and Thomas Jefferson. This discussion has all but ignored others that played important roles in the drafting of this crucial provision governing church-state relations. If we are to properly understand the original meaning of the Establishment Clause, our study must include a review of a wider array of those people who participated in its creation. This paper examines the views of Abraham Baldwin who was one of the key …

Exposing The Underground Establishment Clause In The Supreme Court’S Abortion Cases, Justin S. Murray

Justin S Murray

In Roe v. Wade, the Supreme Court held that women have a right to abortion under the Due Process Clause of the Fourteenth Amendment. The Court reasoned toward this conclusion by importing concepts and concerns that are ordinarily associated with the Establishment Clause. This Article is the first attempt to systematically describe, and critically evaluate, the Court’s use of Establishment-Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to see how the Court wove Establishment-Clause themes into the structure of its Due-Process analysis. The Due Process Clause allows the government to restrict fundamental constitutional …

Exposing The Underground Establishment Clause In The Supreme Court’S Abortion Cases, Justin S. Murray

Justin S Murray

In Roe v. Wade, the Supreme Court held that women have a right to abortion under the Due Process Clause of the Fourteenth Amendment. The Court reasoned toward this conclusion by importing concepts and concerns that are ordinarily associated with the Establishment Clause. This Article is the first attempt to systematically describe, and critically evaluate, the Court’s use of Establishment-Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to see how the Court wove Establishment-Clause themes into the structure of its Due-Process analysis. The Due Process Clause allows the government to restrict fundamental constitutional …

No Bueno, Buono: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

David B. Owens

Atop Sunrise Rock in the Mojave Desert sat a Latin Cross. The only problem, for some, was that this land happened to be owned by the federal government. After contentious litigation, the cross was deemed a violation of the Establishment Clause, and the district court issued an injunction forbidding the cross to remain. That judgment became final and unreviewable, but the district court’s subsequent remedial action—declaring invalid Congress’ attempt to sell only a small “donut” of land around the cross—was not. Congress’ interesting end-around spawned further litigation and an order by the district court modifying the injunction despite the fact …

No Bueno, Buono: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

David B. Owens

Atop Sunrise Rock in the Mojave Desert sat a Latin Cross. The only problem, for some, was that this land happened to be owned by the federal government. After contentious litigation, the cross was deemed a violation of the Establishment Clause, and the district court issued an injunction forbidding the cross to remain. That judgment became final and unreviewable, but the district court’s subsequent remedial action—declaring invalid Congress’ attempt to sell only a small “donut” of land around the cross—was not. Congress’ interesting end-around spawned further litigation and an order by the district court modifying the injunction despite the fact …

Eruv And Establishment, Lorin Geitner

Lorin C. Geitner

An examination of how the Orthodox Jewish practice known as an "eruv", based in Jewish religious law, can help illustrate the tension between the Establishment and Free Exercise clauses of the First Amendment.

Law And Religion – The First Amendment And The Problems Of Alienation, Lorin Geitner

Lorin C. Geitner

A survey of the different patterns of the relationship between of law to religion (and vice versa) in the course of world history, in order to provide historical and legal context and argue for the notion that the United States, truly, a secular society, but rather a religiously pluralistic one.

"Presiding Bishop Of The Church Of Jesus Christ Of Latter-Day Saints V. Amos, 483 U.S. 327 (1987): Addressing Tensions Between The Free Exercise And Establishment Clauses, Elizabeth Clark

Elizabeth A. Clark

No abstract provided.

Licensing Facially Religious Government Speech: Summum's Impact On The Free Speech And Establishment Clauses, Scott W. Gaylord

Scott W. Gaylord

LICENSING FACIALLY RELIGIOUS GOVERNMENT SPEECH: SUMMUM’S IMPACT ON THE FREE SPEECH AND ESTABLISHMENT CLAUSES

Abstract

Scott W. Gaylord

It is the rare case that is decided solely on Free Speech grounds yet directly impacts the Supreme Court’s Establishment Clause jurisprudence. Pleasant Grove City v. Summum is such a case. Although all nine Justices concurred in the judgment—that a privately donated monument in a public park is a form of “government speech” that is not subject to scrutiny under the Free Speech Clause—the case spawned five different opinions as the Justices attempted to explain the proper scope of the Court’s decision …

Not A Prayer In Protecting The Reasonable Observer: Borden Shows The Endorsement Test Is Just Not Working, Genevieve Deppe

Genevieve Deppe

This Article examines how Supreme Court Establishment Clause jurisprudence has evolved from a wall of separation to the endorsement test. As the Court adopted the endorsement test over a series of decisions, their opinions focused on neutrality and protecting minority interests. However, as this Article demonstrates using recent decisions, the endorsement test fails to protect these interests in cases involving prayer in public schools. Assuming the Establishment Clause should indeed protect neutrality and minority interests, as the Court has repeatedly stressed, this Article proposes a new test to analyze Establishment Clause cases in public schools that will better protect minority …

Of Christmas Trees And Corpus Christi: Ceremonial Deism And Change In Meaning Over Time, Jessie Hill

Jessie Hill

Although the Supreme Court turned away an Establishment Clause challenge to the words “under God” in the Pledge of Allegiance in Elk Grove Unified School District v. Newdow, the issues raised by that case are not going away anytime soon. Legal controversies over facially religious government speech have become one of the most regular and prominent features of Establishment Clause jurisprudence – and indeed, a second-round challenge to the Pledge of Allegiance is currently percolating, which is likely to result in resolution by the Supreme Court. That resolution will depend on an understanding of the social meaning of the practice …

Selman And Kitzmiller And The Imposition Of Darwinian Orthodoxy In The Classroom, Robert J. D'Agostino

Robert J D'Agostino

No abstract provided.

Divided We Fall: Religion, Politics, And The Lemon Entanglements Prong, Stephen M. Feldman

Stephen M. Feldman

The 2008 campaign for the presidency should remind Americans that mixing religion and politics can be dangerous. Polls show that more than half of American voters would hesitate to support a Mormon candidate. In terms of Establishment Clause doctrine, the entanglements prong of the Lemon test provides a mechanism for protecting political equality by ensuring against religiously-inspired political divisiveness. Yet, in recent years, numerous scholars and Supreme Court Justices have attacked the entanglements prong. Indeed, the Court has poked so many holes in the entanglements inquiry that it may no longer exist. This Article defends the political-divisiveness component of the …

The Congressional Chaplaincies, Christopher C. Lund

Christopher C Lund

Twenty five years ago, in Marsh v. Chambers, the Supreme Court considered the congressional chaplaincies, and concluded that they were not “an ‘establishment’ of religion or a step toward establishment,” but instead were “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” That latter phrase has been repeated hundreds of times in cases and law review articles; it suggests that the chaplaincies are uninteresting and uncontroversial and that they have been so throughout our history.

The Court in Marsh looked only briefly at the history of the chaplaincies. But a deeper look at that history …

Does The Constitutional Norm Of Separation Of Church And State Justify The Denial Of Tax Exemption To Churches That Engage In Partisan Political Speech?, Johnny Buckles

Johnny Buckles

The Internal Revenue Service is aggressively investigating churches for their alleged political endorsements of candidates in the 2008 presidential election. At issue is whether these churches have violated section 501(c)(3) of the Internal Revenue Code, which imposes a ban on electioneering by churches and other charities as a condition of maintaining federal income tax exemption. The ban has been justified as necessary to ensure the proper separation of church and state. This article critically analyzes this rationale for the ban. Four major variants of the separationist argument are articulated and thoroughly analyzed in the context of relevant Supreme Court case …

Mis-Under-Standing Freedom From Religion: Two Cents On Madison's Three Pence, Kyle Duncan

Kyle Duncan

Forty years ago in Flast v. Cohen, the Supreme Court created, for Establishment Clause cases only, a dramatic exception to a bedrock principle of standing doctrine, based on one catchy phrase from a famous historical document—James Madison’s 1785 Memorial and Remonstrance Against Religious Assessments. The Court has been notoriously bad at Establishment Clause history, but Flast seemed to push the envelope. Yet neither the Court nor commentators seemed to question Flast’s historical credentials over the last four decades. Recently, the Supreme Court took up the standing question again in Hein v. Freedom From Religion Foundation, Inc. Unhappily, the justices’ various …

State Funding Of Devotional Studies: A Failed Jurisprudence That Has Lost Its Moorings, Mark Strasser

Mark Strasser

The Court’s attitude toward the public funding of devotional studies can best be described as ambivalent. Not long ago, devotional studies were viewed as one of the few kinds of study that the state clearly could not fund. Then, the Court did an about-face, implying that public funding of devotional studies does not violate constitutional guarantees, because that kind of study cannot be distinguished for constitutional purposes from other kinds of permissibly funded areas of study. Still more recently, the Court has changed course yet again, suggesting that states may but need not refuse to fund such studies, reverting to …

The Future Of Religious Pluralism: Justice O'Connor And The Establishment Clause, Deborah J. Merritt, Daniel C. Merritt

Deborah J Merritt

Justice Sandra Day O’Connor offered a distinctive vision of the Establishment Clause. This article puts that vision in context by reviewing the history of religious pluralism, tolerance, and intolerance in the United States. The article also draws upon psychology research to illuminate the polarizing tendencies that continuously undermine religious tolerance. These sections of the article offer essential background that many observers overlook when analyzing the Establishment Clause. Finally, the article argues that Justice O’Connor’s Establishment Clause principles offer the best promise of promoting religious pluralism more fully in the United States.

God And Caesar In The Twenty-First Century: What Recent Cases Say About Church-State Relations In England And The United States , Judith Fischer, Chloe Wallace

Judith D. Fischer

This article analyzes current jurisprudence concerning the relationship of church and state in the U.S. and England, with special attention to the U.S. Supreme Court’s recent decisions in the Ten Commandments cases. The co-authors, law professors from the United States and the United Kingdom, present background about the history of religious establishment and church-state jurisprudence in the two countries. They then discuss the effects of each country’s recent cases on the subject. The authors conclude that the two countries are moving closer to each other on the continuum between establishment and disestablishment.

The Magic Of Vouchers Is No Sleight Of Hand: A Reply To Steven K. Green, John Eastman

John C. Eastman

In a provacative 2002 article, The Illusory Aspect of 'Private Choice' for Constitutional Analysis,, Professor Steven Green challenged both the constitutionality and the policy benefits of school vouhcers. The Supreme Court put to rest the constitutional objection in Zelman v. Simmons-Harris shortly after the article was published, but I argue here that the issue should not even have been close. As originally understood, the Establishment Clause was a federalism provision, barring the national government from maked a national church, but also barring the national government from intervening with existing state support of religion. I then take issue with Steven Green's …

In The Wake Of Lee V. Weisman: The Future Of School Graduation Prayer Is Uncertain At Best, Stephen Durden

Stephen Durden

No abstract provided.