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Articles 1 - 23 of 23
Full-Text Articles in Law
A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone
A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone
Law Faculty Publications
In Kennedy v. Bremerton School District, the Roberts Court continued its move to carve out larger spaces for religious practice and expression in public spheres. But in so doing it left lower courts and school districts with many more questions than answers concerning what the Establishment Clause means and what it requires of them.
Analyzing The Fiscal Relationship Between The Church And State, Emily Lethbridge
Analyzing The Fiscal Relationship Between The Church And State, Emily Lethbridge
Senior Honors Theses
The relationship between the government and the church is frequently debated in the United States. One main concern is the legality of the government granting funding to churches, religious schools, and Christian organizations. Religious institutions are separated from the government; thus, they can be tax-exempt and able to discriminate on a religious basis. The Supreme Court has analyzed the Free Exercise and Establishment Clauses in several cases to determine when the government may grant funds to religious institutions. In the past decade, administrative code and judicial case law have both expanded religious institutions’ ability to receive governmental funds. Inevitably, controversy …
Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson
Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson
All Faculty Scholarship
In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution's Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights and civil liberties ‒ that any activity must be permitted if it is not imposed upon others without their consent, and if …
Twenty-Five Years Of Law And Religion Scholarship: Some Reflections, Marie Failinger
Twenty-Five Years Of Law And Religion Scholarship: Some Reflections, Marie Failinger
Faculty Scholarship
In this address, the author describes some of the significant movements in law and religion scholarship over the past twenty-five years, including the dialogue between traditional church-state and international human rights scholars and outside scholars, including those writing from within American minority faith traditions.
The Curious Case Of Legislative Prayer: Town Of Greece V. Galloway, Ian C. Bartrum
The Curious Case Of Legislative Prayer: Town Of Greece V. Galloway, Ian C. Bartrum
Scholarly Works
This essay explores the Supreme Court's decision to reenter the debate over legislative prayers, and the Solicitor General's curious decision to enter the case in defense of Greece, New York's (somewhat dubious) practice. I suggest that the Court's decision, and the Solicitor's brief, can best be understood as part of larger conflict over Establishment Clause doctrine moving forward.
Ideology "All The Way Down"? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise
Ideology "All The Way Down"? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise
Cornell Law Faculty Publications
No abstract provided.
Between Liberalism And Theocracy, John D. Inazu
Between Liberalism And Theocracy, John D. Inazu
Faculty Scholarship
Our symposium conveners have focused us on “the relationship between liberalism and Christianity and their influence on American constitutionalism.” My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for the relationship between church and state. By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are prone to …
Panel Discussion At "Signs Of The Times: The First Amendment And Religious Symbolism", Carl H. Esbeck
Panel Discussion At "Signs Of The Times: The First Amendment And Religious Symbolism", Carl H. Esbeck
Faculty Publications
No abstract provided.
Neuroscience And The Free Exercise Of Religion, Steven Goldberg
Neuroscience And The Free Exercise Of Religion, Steven Goldberg
Georgetown Law Faculty Publications and Other Works
Recent developments in neuroscience that purport to reduce religious experience to specific parts of the brain will not diminish the fundamental cultural or legal standing of religion. William James debunked this possibility in The Varieties of Religious Experience (1902) when he noted that “the organic causation of a religious state of mind” no more refutes religion than the argument that scientific theories are so caused refutes science. But there will be incremental legal change in areas like civil commitment where judges must sometimes distinguish between mental disorder and religious belief. The paradox is that the ecstatic religious experience of unorthodox …
Why The Supreme Court Has Fashioned Rules Of Standing Unique To The Establishment Clause, Carl H. Esbeck
Why The Supreme Court Has Fashioned Rules Of Standing Unique To The Establishment Clause, Carl H. Esbeck
Faculty Publications
The U.S. Supreme Court will hear oral argument this fall in Salazar v. Buono, No. 08-472, a matter that involves a Latin cross located in the Mojave National Preserve located in Southeastern California and operated by the National Park Service. First placed there as a memorial to American’s who served in WWI, this Christian symbol is said to violated the Establishment Clause of the First Amendment. Before reaching the merits, however, the Court must first pass on the question of standing to sue. The plaintiff, Frank Buono, is a former employee of the National Park Service and objects to the …
When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck
When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck
Faculty Publications
This article sets forth five rules with respect to what government may do to accommodate religious practice and five rules with respect to what government may not do. As it turns out the Supreme Court has said that most religious accommodations are left to the broad discretion of legislators and public officials. So long as the object of the accommodation is to protect or expand religious freedom, as distinct from expanding religion, the accommodation will be permitted.
Defending A Rule Of Institutional Autonomy On "No-Harm" Grounds, Mark V. Tushnet
Defending A Rule Of Institutional Autonomy On "No-Harm" Grounds, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
The argument I sketch here for institutional autonomy is basically empirical and agrees with Professor Hamilton in making harm-reduction the overriding social goal. The argument proceeds in two steps. First, I suggest that autonomous institutions may be able to socialize their adherents more effectively than institutions that lack autonomy and that - if the institutions' values are compatible with the legislature's - their more effective socialization can produce a net reduction in the harms inflicted by the institutions' members. Second, autonomy for all institutions can be defended if the gains from assuring autonomy for groups whose values are compatible with …
Faith And Funding: Toward An Expressivist Model Of The Establishment Clause, David Cole
Faith And Funding: Toward An Expressivist Model Of The Establishment Clause, David Cole
Georgetown Law Faculty Publications and Other Works
This article seeks to provide an alternative to the polarization that so often characterizes debates about church and state. In Part I, the author suggests that there are good policy reasons for supporting faith-based initiatives, and that these reasons ought to be attractive to liberals and progressives, many of whom have opposed faith-based initiatives. Faith-based social services are, after all, social services, and are often the very types of welfare services that liberals and progressives tend to support. Core religious values--in particular, concern about the less fortunate, a belief in human dignity, and a commitment to the possibility of redemption--reinforce …
Stability And Development In Canon Law And The Case Of "Definitive" Teaching, Ladislas M. Örsy
Stability And Development In Canon Law And The Case Of "Definitive" Teaching, Ladislas M. Örsy
Georgetown Law Faculty Publications and Other Works
Stability is an essential quality of any good legal system because a community's laws are an expression of its identity, and there is no identity without permanency. Many times we hear in the United States that we are a country held together by our laws. Although the statement cannot be the full truth, it is obvious that if our laws ever lost their stability, the nation's identity would be imperiled. In a religious community where the source of its identity is in the common memory of a divine revelation, the demand for stability is even stronger. Fidelity to the "Word …
Separation And Schools, Kent Greenawalt
Separation And Schools, Kent Greenawalt
Faculty Scholarship
In commenting on these rich papers by Michel Troper and Michael McConnell, I first analyze the implications of legal and political theory for religious liberty and separation of church and state. I then turn to underlying premises of modern liberal theory about moral education and tolerance among citizens. Lastly, I concentrate on separation as it affects the schooling of children. Despite Professor Troper's emphasis on the uniqueness of French understanding and history, I was struck by how closely French problems about schooling, and their possible resolutions, resemble those in the United States.
Roger Williams's Gift: Religious Freedom In America, Edward J. Eberle
Roger Williams's Gift: Religious Freedom In America, Edward J. Eberle
Law Faculty Scholarship
No abstract provided.
Review Essay: The Challenges Of Religous Neutrality, Samuel J. Levine
Review Essay: The Challenges Of Religous Neutrality, Samuel J. Levine
Scholarly Works
Levine begins this review essay by noting that at the outset of his discussion, Gedicks notes the difficulty one faces in critically engaging Supreme Court decisions in the area of church and state law. Gedicks goes on to premise his analysis on the identification of “competing rhetorical discourses of church-state relations,” through which he attempts to “organize virtually all of religion clause doctrine.” Gedicks applies this phenomenon, which he terms “discourse,” to church and state law. Thus, in The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence, Professor Gedicks succeeds in his goal of providing a …
Pluralist Establishment: Reflections On The English Experience, Robert E. Rodes
Pluralist Establishment: Reflections On The English Experience, Robert E. Rodes
Journal Articles
England's historical and current synthesis of Church and State differs greatly from other European and American experiences. It contrasts sharply with the path taken by most states, which chose to cope with religious pluralism by privatizing religion and by trying to base public life on secular views of human nature. This paper reviews the unique inception, and continuance, of the church-state throughout English history. It also reviews the unique manner in which England chose to deal with religious pluralism while maintaining its established church. After reviewing the English experience of establishment of religion, this paper concludes that the total wall …
How To Govern A City On A Hill: The Early Puritan Contribution To American Constitutionalism, John Witte Jr.
How To Govern A City On A Hill: The Early Puritan Contribution To American Constitutionalism, John Witte Jr.
Faculty Articles
This Article explores briefly the constitutional ideas and institutions of seventeenth-century Puritan New England. It analyzes the constitutional ideas that the Puritans derived from their theological doctrines of covenant, church and state, and sin, and it examines the forms and functions of political and ecclesiastical government they devised in implementation of these ideas.
Religious Convictions And Political Choice: Some Further Thoughts, Kent Greenawalt
Religious Convictions And Political Choice: Some Further Thoughts, Kent Greenawalt
Faculty Scholarship
Let me start by putting my topic in a concrete context. Suppose a statute is offered to relieve animals of the oppressively cramped conditions of modern factory farming. Advocates claim that calves, lambs, pigs, and chickens should have a better quality of life before being slaughtered for food. Opponents argue that factory farming helps provide tasty, inexpensive meat and that farmers should be free to decide how to treat animals that they own. At stake in the decision whether to restrict farmers is some balancing of animal interests against human interests. In our relatively wealthy society the human interests are …
Disestablished Religion In Pennsylvania And Kentucky: A Study In Constitutional Interpretation, Kenneth S. Gallant
Disestablished Religion In Pennsylvania And Kentucky: A Study In Constitutional Interpretation, Kenneth S. Gallant
Faculty Scholarship
No abstract provided.
Book Review. Church-State Relationships In America By Gerald V. Bradley, Richard M. Fraher
Book Review. Church-State Relationships In America By Gerald V. Bradley, Richard M. Fraher
Articles by Maurer Faculty
No abstract provided.
The Last Days Of Erastianism: Forms In The American Church-State Nexus, Robert E. Rodes
The Last Days Of Erastianism: Forms In The American Church-State Nexus, Robert E. Rodes
Journal Articles
In the long history of Christendom, an Erastian view of the relation between Church and State has existed in tension with a High Church view. This paper explores the current state of our current shopworn Erastian-like church-state nexus and considers what forces may bring a more relevant and effective institutional High Church witness into being. The fact that the United States has an Erastian-like church-state relation is borne out in a line of cases involving the judicial resolution of intra-church disputes and the effect to be given the mandates of ecclesiastical authority. It is also borne out in legislative and …