Law Commons^™

Who Let The Ghouls Out? The History And Tradition Test’S Embrace Of Neutrality And Pluralism In Establishment Cases, Jake S. Neill

Pepperdine Law Review

In June of 2022, the Supreme Court decided in Kennedy v. Bremerton School District that an Establishment Clause inquiry “focused on original meaning and history” would replace Lemon’s endorsement test. But after announcing the test, the Court neglected to describe or apply it. This Comment attempts to fill that void. After analyzing the Court’s Establishment Clause jurisprudence, this Comment proposes tenets of the history and tradition test and applies those tenets to Allegheny County v. ACLU, a case decided under Lemon. Finally, this Comment concludes by arguing that the history and tradition inquiry supports pluralism, humility, tolerance, and a healthy …

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

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 …

Establishing An End To Lemon In The Eleventh Circuit, Amanda Harmon Cooley

University of Miami Law Review

Over half a century ago, the Supreme Court decided Lemon v. Kurtzman, the most controversial Establishment Clause case in judicial history. And despite the Lemon test’s constant criticism, the Court has never expressly overruled the decision in its entirety. This continues to be the case even after Kennedy v. Bremerton School District, in which the Court noted Lemon’s abandonment rather than its complete abrogation. As a result, lower federal district courts have been left in limbo regarding whether Lemon is fair game for any of their Establishment Clause determinations and have been inconsistent in using it as …

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.

Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn

Law Faculty Publications

On September 30, 2022, several members of the faculty of the Thomas R. Kline School of Law of Duquesne University presented a Continuing Legal Education program, New Supreme Court Cases: Duquesne Law Faculty Explains, reviewing these developments. Duquesne Law Review graciously invited the faculty panel to contribute their analysis of these cases from the Supreme Court's 2021- 2022 term for inclusion in this symposium issue of the Law Review.

Protecting Islam's Garden From The Wilderness: Halal Fraud Statutes And The First Amendment, Elijah L. Milne

Journal of Food Law & Policy

Like all religions, Islam needs protection from governmental encroachment. As early as 1644, Roger Williams, the founder of Rhode Island, recognized that state involvement in religious matters defiles religion. "When they have opened a gap in the hedge or wall of separation between the garden of [religion] and the wilderness of the world," wrote Williams, "God hath ever broke down the wall itself, removed the candlestick, and made His garden a wilderness ... ." Although Williams was mostly concerned about the government's impact on Christianity, his oft-quoted metaphor applies equally to the government's influence on Islam. This Article will discuss …

History's Speech Acts, Jessie Hill

Faculty Publications

This Essay considers the historic relationship between symbolic public expressions of racial and religious identity—in particular, Confederate symbols and Christian religious displays. These displays sometimes comprise shared symbology, and the adoption of this symbology overlaps at distinct moments in U.S. history in which Confederate and Christian symbolism converged to express messages of combined religious and racial superiority. This Essay argues that these forms of expression can best be understood as “speech acts” that seek to construct a particular social reality, often in defiance of political and social fact. They thus not only express but also enact social hierarchies. It further …

Establishment Clause Mythology, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

For 75 years, the Supreme Court’s opinions have reflected stark conflict between two competing narratives about the Establishment Clause’s meaning and legal foundation. One view holds that the Constitution requires a separation between church and state. The other view asserts that the government may promote religion. The former view—which we call separationism—is based on the framers’ understanding of the nature of civil government, and on a political theory of liberal pluralism. The latter view—which we call religionism—is usually grounded in tradition, and principally has its roots in the Second Great Awakening of the nineteenth century and its urge to transform …

Reclaiming Establishment: Identity And The ‘Religious Equality Problem’, Faraz Sanei

Faculty Scholarship

Since at least 2017, the Court has implicitly recognized a right of equal access to generally available public benefits based on the beneficiary's religious identity or status. In Carson v. Makin (2022), the Court went a step further and, for the first time, concluded that the “status-use distinction lacks a meaningful application” in both theory and practice. It then held that restrictions on the use of public benefits for sacral purposes amount to religious discrimination because they impose substantial burdens on free exercise rights. Carson's holding, and the rationale underlying it, contravene settled case law and effectively gut the Establishment …

A Religious Right To Abortion: Legal History And Analysis, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

There is a long and rich history of religious support, across a wide range of faith traditions, for the right to reproductive autonomy, including abortion. A number of religious denominations, including the Presbyterian Church, Reform and Conservative Judaism, the United Church of Christ, and the Unitarian Universalist Association, support a legal right to abortion in most or all circumstances. Several religious denominations have even — long before the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization — issued statements explaining that the right to reproductive health care is an essential aspect of their members’ religious …

The New Disestablishments, Marc O. Degirolami

Faculty Publications

(Excerpt)

The individual has the autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the policy preferences of that class in this domain, should be imposed on everyone. These propositions reflect two central creeds of what this Article calls the "new establishment." They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, science, healthcare and medicine, and more.

Whether these propositions constitute a "religious" establishment turns out to be an irrelevant distraction. To …

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 …

An Extended Essay On Church Autonomy, Carl H. Esbeck

Faculty Publications

The doctrine of church autonomy has its own exclusive line of precedent running from Watson v. Jones (1872) through Kedroff v. St. Nicholas Cathedral (1952) - where the doctrine was first recognized as having First Amendment stature - and culminating with renewed vigor for religious institutional autonomy in the unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012). Attention to church autonomy has expanded rapidly since the Supreme Court’s decision in Hosanna-Tabor, and its scope is much disputed as it pushes aside other claims and interests. In its most familiar form—the “ministerial exception” - it is …

School Board Prayer: Reconciling The Legislative Prayer Exception And School Prayer Jurisprudence, Evan Lee

Akron Law Review

The Supreme Court has carved a legislative prayer exception out of the First Amendment’s Establishment Clause to allow clergy to deliver opening prayers at legislative sessions and meetings of local public deliberative bodies, such as town boards. Meanwhile, for decades, the Supreme Court has struck drown prayers in the public school context, including prayers in the classroom, at graduation ceremonies, and at high school varsity football games. However, the Supreme Court has not addressed whether prayers at public school board meetings should be barred as prayers in the public school context or permitted under the legislative prayer exception. A circuit …

Let’S Go To The Beach: Gender Segregation As A Tool To Accommodate Religious Minorities, Sarah Gibbons

Chicago-Kent Law Review

No abstract provided.

Secular Invocations And The Promise Of Religious Pluralism, Jay D. Wexler

Faculty Scholarship

The Supreme Court has considered the constitutionality of “legislative prayer” twice, once in the 1983 case of Marsh v. Chambers and once in the 2014 case of Town of Greece v. Galloway. Although both of those cases upheld challenged invocation practices on the basis that such practices predated the adoption of the First Amendment, they also placed additional limits on the nature of such prayer programs, including that they be non-discriminatory, as Justice Kennedy explained in Town of Greece. In response to Justice Kennedy’s non-discrimination mandate, hundreds of secular individuals in the wake of Town of Greece asked to give …

My Body Is Note My Choice Anymore? How Conscience Protections For Doctors Violate An Individual’S Right To Use Contraceptives And The Establishment Clause, Wanying Yang

American University Journal of Gender, Social Policy & the Law

Introduction

After a month of waiting, Evann finally met her gynecologist for a consultation on her first intrauterine device (IUD). However, before Evann told the gynecologist her request and symptoms, the gynecologist emphasized she was in a Catholic hospital and that they only prescribe oral contraceptives to patients with heavy cramping. The gynecologist then passed Evann an unofficial paper with an IUD provider’s number and expressed sorrow regarding Evann’s decision to use contraceptives. Evann walked out of the hospital without any information on the IUD, but instead with frustration and shame.

In Contracts We Trust (And No One Can Change Their Mind)! There Should Be No Special Treatment For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Faculty Articles

The recent article In God We Trust (Unless We Change Our Mind): How State of Mind Relates to Religious Arbitration ("In God We Trust") proposes that those who sign arbitration agreements that consent to a religious legal system as the basis of the rules of arbitration be allowed to back out of such agreements based on their constitutional right to free exercise. This article is a response and is divided into two sections. In the first section, we show that such an exemption would violate the Federal Arbitration Act's (FAA) basic rules preventing the states from heightened regulation of arbitration …

Dehors The Record: A Correction Of A Final Jeopardy Question, Thomas E. Baker

FIU Law Review

No abstract provided.

Foster Care And The Growing Tension Between The Religion Clauses: A Comment On Rogers V. Hhs, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In 2018, the U.S. Department of Health & Human Services and the State of South Carolina agreed to waive their requirements of religious non-discrimination by state-funded, licensed child placement agencies. The state had discovered that its largest provider, Miracle Hill, approved the applications of only those who shared its Evangelical Protestant faith. Eden Rogers and Brandy Welch, a Unitarian, married same-sex couple, applied to Miracle Hill to be certified as foster parents. After Miracle Hill refused on religious grounds to assess the couple’s fitness, the couple filed suit against various federal and state defendants, alleging that the waivers constituted an …

July 1, 2020: Originalism Is Dead, Bruce Ledewitz

Hallowed Secularism

Blog post, “Originalism Is Dead“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Is The Establishment Clause Asymmetrical?, Sam Foer

Senior Honors Projects

Through numerous Establishment Clause cases, the Supreme Court has concluded that when public educators promote or denigrate religious views in the K-12 classroom, they violate the First Amendment. The Court has found that the protection of ‘freedom of conscience’ is embedded in the purpose of the Establishment Clause, which applies most strictly to the public school setting. This is because the sphere of conscience is most vulnerable to invasion in developing minds, and children are in a captive environment at school - they cannot escape from State instruction. Thus, states, school systems, and teachers who impose their religious beliefs onto …

Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin

Scholarly Works

Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states …

The Wrong Choice To Address School Choice: Espinoza V. Montana Department Of Revenue, Brooke Reczka

Duke Journal of Constitutional Law & Public Policy Sidebar

For many school-choice advocates, Espinoza v. Montana Department of Revenue is the chance to extend the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer in 2017. In Trinity Lutheran, the Supreme Court held that a state’s exclusion of a church from a public benefit program to resurface playgrounds discriminated against religion in violation of the Free Exercise Clause. Many school-choice proponents hope to extend the Trinity Lutheran holding from playgrounds materials to school funding and thus strike down religion-based exclusions in school voucher programs. However, Espinoza is the wrong vehicle to do so. In …

First Amendment “Harms”, Stephanie H. Barclay

Indiana Law Journal

What role should harm to third parties play in the government’s ability to protect religious rights? The intuitively appealing “harm” principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in light of the Supreme Court’s pending cases in Little Sisters of the Poor and Fulton v. City of Philadelphia. While focusing on harm appears at first to provide an appealing, simple, and neutral principle for avoiding other difficult moral questions, the definition of harm …

Government Speech Doctrine—Legislator-Led Prayer's Saving Grace, Daniel M. Vitagliano

St. John's Law Review

(Excerpt)

This Note argues that Lund was decided incorrectly in part because the Fourth Circuit failed to analyze the type of speech at issue before assessing the constitutionality of the prayer practice. This Note is composed of four parts. Part I surveys the Supreme Court’s legislative prayer jurisprudence—Marsh and Town of Greece. Part II outlines Lund and Bormuth, and the Fourth and Sixth Circuits’ dissimilar applications of the Supreme Court’s precedent. Part III argues that courts must first classify legislative prayers as either government or private speech before assessing whether a prayer practice violates the Establishment Clause. It further argues …

How Conscientious Objectors Killed The Draft: The Collapse Of The Selective Service During The Vietnam War, Bill Raley

Cleveland State Law Review

This Article argues that a key-but-overlooked factor in the Vietnam-era breakdown of the draft system was the Supreme Court’s expansion of the religious conscientious objector ("CO") exemption. It asserts that the Court understood that the CO exemption violated the Establishment Clause, but rather than strike the exemption down, the Court avoided the constitutional issue by interpreting away the religious element of CO statutes. The Article concludes that the Court’s rulings caused CO exemptions to skyrocket, which in turn caused the draft system to collapse toward the end of the Vietnam War.

Brief Of Constitutional Law Scholars As Amici Curiae In Support Of Petitioners, David F. Forte, Ronald J. Colombo, Richard Epstein, Carl H. Esbeck, Robert P. George, Mary Ann Glendon, Brian Mccall, Stacy Scaldo, Steven Smith

Law Faculty Briefs and Court Documents

Lurking behind the regulatory issues presented by this appeal is a concerted effort to displace the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. ("RFRA"), with a novel approach that would trivialize a law's burden on religion. The Court should not indulge it.

The critics' argument suffers from several analytical defects that can be remedied by (1) a proper constitutional understanding of RFRA's relationship to the Establishment Clause; (2) an accurate understanding of how the Religion Clauses safeguard third-party interests; and (3) the correct application of these understandings to the Final Rules.

The Supreme Court's Facilitation Of White Christian Nationalism, Caroline Mala Corbin

Articles

Doug Jager, a band student of Native-American ancestry, complained about the Christian prayers at his Georgia public school’s football games. Rather than address his concerns, the school lectured him on Christianity and proposed an alternative that appeared neutral yet would result in the continuation of the Christian prayers. In striking down the school’s proposal, Judge Frank M. Johnson Jr. understood some of the ramifications of state-sponsored Christianity.

Despite Supreme Court rulings limiting Christian invocations at public-school events, government-sponsored Christian prayers and Christian symbols remain plentiful in the United States. This proliferation of government-sponsored Christianity around the country both reflects and …