Open Access. Powered by Scholars. Published by Universities.®
- Publication
Articles 1 - 2 of 2
Full-Text Articles in Law
Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen Brady
Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen Brady
Kathleen A Brady
Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded—at least in theory—significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of …
Federalism As Balance, Robert Justin Lipkin
Federalism As Balance, Robert Justin Lipkin
Robert Justin Lipkin
Federalism as balance between the federal government and the states is a deeply entrenched principle of American constitutional law. Without the idea of balance or some replacement concept, judges and constitutional scholars seem incapable of conceptualizing federalism and resolving federalist conflicts. The thesis of the Article is that federalism as balance must be reexamined to assess whether it is jurisprudentially sound. For this purpose, the Article introduces a framework for understanding balancing discourse generally. Upon examination, federalism as balance does not satisfy the requirements articulated by this framework. The result is that this conception has no discernible content and therefore …