Law Commons^™

Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise

St. John's Law Review

In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.

Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …

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.

Gordon College And The Future Of The Ministerial Exception, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Gordon College v. DeWeese-Boyd, a social work professor at a religious college sued after she was denied promotion. The college asserted the “ministerial exception,” a judicially crafted and constitutionally grounded exception to the ordinary rules of liability arising out of the employment relationship between religious institutions and their ministers. Although the plaintiff had no distinctively religious duties, the college expected her (and all other faculty) to integrate the faith into her teaching and scholarship. The Massachusetts Supreme Judicial Court (SJC) held that this obligation, standing alone, was insufficient to qualify the plaintiff as a minister within the meaning of …

Chief Justice John Roberts: Institutionalist Or Hubris-In-Chief?, Eric J. Segall

Washington and Lee Law Review Online

The conventional wisdom among Supreme Court scholars and commentators is that Chief Justice John Roberts is an institutionalist who cares deeply about both his personal legacy and the Supreme Court’s prestige over time. This essay challenges that belief. While the Chief certainly cares about how the Court is perceived by the public, as do most of the justices, what most defines Roberts is his hubris—not a concern for the Court’s legitimacy or even his own place in history. Across the vast landscape of constitutional law, Roberts has distorted precedent and ignored text and history to further his own policy preferences. …

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 …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

The Religious Roots Of The Progressive Income Tax In America, Joshua Cutler

Catholic University Law Review

I examine the debate over the first peacetime income tax in the United States in 1894 to investigate the role of religion in enacting the tax and providing moral legitimacy. I find that congressional proponents repeatedly and explicitly argued that a progressive income tax was a biblical tax that best conformed to Judeo-Christian teachings on economics and fundraising. I discuss the history of American religious fundraising practices, including the trend leading up to 1894 that advocated for proportionate giving of income as the best method of giving, as well as the related tithing movement. I document that congressional income tax …

The Pre-History Of Subsidiarity In Leo Xiii, Michael P. Moreland

Journal of Catholic Legal Studies

(Excerpt)

Part of the confusion over subsidiarity—but also, perhaps, an aspect of the principle’s richness—is its combination, then, of both “libertarian” and “communitarian” elements. Progress in our understanding and application of subsidiarity will require a careful assessment of these considerations and determining when intervention or assistance [subsidium] from a higher authority is needed and when devolution of responsibility is warranted. More precisely, we will need to determine when authority is properly located at a higher level and when authority is properly recognized in the smaller community. This conclusion, in turn, will require a discussion of subsidiarity’s political theoretical …

An Unfinished Project: John Courtney Murray, Religious Freedom, And Unresolved Tensions In Contemporary American Society, Miguel H. Diaz

Philosophy: Faculty Publications and Other Works

Religious freedom has re-emerged as a controversial issue in the courts, in the Church, and in the public square in the United States. This essay examines the groundbreaking contribution that John Courtney Murray, SJ made to bring about a paradigm shift in Roman Catholic teaching on religious freedom. This shift can be traced to the Church’s transitioning from the view that “error has no rights” to only people—not ideas—have rights. The essay underscores Murray’s focus on human conscience and addresses tensions that have emerged in the United States between voices that affirm the right to religious freedom and those that …

Revisiting The American Church-State Relationship: The Trinity Lutheran Church Case, Jack Van Der Slik

Pro Rege

No abstract provided.

Freedom Of Religion And Freedom From Religion: The European Model, Jhh Weiler

Maine Law Review

What place may religion have in our public space? In our definition of the State? In our educational systems? In defining our public identity? It is, in part, a question of and for democracy: Imagine a State with a majority of practicing Christians among its citizens. May they use the legislative and administrative institutions of the State to make theirs a Christian State? Would that not run up institutions of the State to make theirs a Christian State? Would that not run up against our most cherished constitutional principles of freedom, notable freedom of religion and freedom from religion? The …

Trump And Cabinet Nominees Seek To Restrict Muslim Rights, Break Down The Wall Between Church And State, Public Rights/Private Conscience Project

Center for Gender & Sexuality Law

A new document issued by the Public Rights/Private Conscience Project (PRPCP) at Columbia Law School outlines the numerous areas in which the Trump administration will seek to advance particular conservative Christian tenets, restrict the rights of religious minorities, and break down the barrier between church and state. Enactment of the administration’s policy priorities would call into question the careful balance that currently exists between the First Amendment and other fundamental rights guaranteed under the Constitution. The report, entitled Church, State & the Trump Administration, highlights the ways in which the new administration’s early executive actions and cabinet nominations, as …

Test Your Knowledge Of Church And State, Alan E. Garfield

Alan E Garfield

No abstract provided.

God’S Uses Of The Law And The Effort To Establish A Constitutional Right To The Means To Live, Marie A. Failinger, Patrick R. Keifert

Faculty Publications

No abstract provided.

Five Justices Have Transformed The First Amendment’S Freedom Of Religion To Freedom From Religion, Gerald Walpin

Touro Law Review

No abstract provided.

A Balanced Diet Of First Amendment Cases, Joel Gora

Touro Law Review

No abstract provided.

And The Wall Comes Tumbling Down: How The Supreme Court Is Striking The Wrong Balance Between Majority And Minority Rights In Church And State Cases, Alan Garfield

Alan E Garfield

2003-2004 Supreme Court Term: Another Losing Season For The First Amendment, Joel M. Gora

Touro Law Review

No abstract provided.

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 …

Supreme Court, Kings County, Wilson V. Kilkenny, James Dougherty

Touro Law Review

No abstract provided.

Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Deconstructing The Religious Free Market, Jianlin Chen

Jianlin Chen

Scholars have frequently alluded to the normative value of the religious free market fostered by the twin legal guarantees of the free exercise of religion and the absence of state establishment of religion. But given that the desirable normative interpretations of these two clauses differ widely, the nature of the resulting market is inevitably dependent on one’s choice of these contested interpretations. Similarly, the “entitlement to free religious competition” depends on the definition of “religion.” The present article deconstructs the religious free market into its legal components and discusses critically how the different interpretations and combinations of these legal components …

Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Proselytism And The Right To Freedom From Improper Irreligious Influence: The Example Of Public School Education, S De Freitas

Law Papers and Journal Articles

Jurisprudentially speaking, "proselytism" is a concept within the larger genus of the protection of religious rights and freedoms. The word lends itself to differing opinions. However, there is a popular school of thought that "proselytism" has to do only with influencing people to adopt a particular religion. Such an understanding relies on the view that only the "religious" can be insidious and bear the potential to improperly proselytise, and thus excludes the possibility of improper irreligious forms of influence. In referring to the example of public-school education, it is argued that as much as the religious has the potential for …

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.

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 Vietnam Draft Cases And The Pro-Religion Equality Project, Bruce Ledewitz

Bruce Ledewitz

The Last Days Of Erastianism: Forms In The American Church-State Nexus, Robert E. Rodes

Robert Rodes

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 …

Pluralist Establishment: Reflections On The English Experience, Robert E. Rodes

Robert Rodes

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 …

Religion, Division, And The First Amendment, Richard W. Garnett

Richard W Garnett

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …