Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Establishment Clause

Discipline
Institution
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 478

Full-Text Articles in Law

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 Jun 2023

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 Jun 2023

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 …


Forward: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn Apr 2023

Forward: 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.


A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone Apr 2023

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.


Protecting Islam's Garden From The Wilderness: Halal Fraud Statutes And The First Amendment, Elijah L. Milne Jan 2023

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 …


A Religious Right To Abortion: Legal History And Analysis, Law, Rights, And Religion Project Aug 2022

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 …


Gordon College And The Future Of The Ministerial Exception, Peter J. Smith, Robert W. Tuttle Jan 2022

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 Sep 2021

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 May 2021

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 Apr 2021

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 Apr 2021

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 Jan 2021

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.


Foster Care And The Growing Tension Between The Religion Clauses: A Comment On Rogers V. Hhs, Robert W. Tuttle Jan 2021

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 …


Dehors The Record: A Correction Of A Final Jeopardy Question, Thomas E. Baker Jan 2021

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

FIU Law Review

No abstract provided.


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 Jan 2021

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 …


July 1, 2020: Originalism Is Dead, Bruce Ledewitz Jul 2020

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 May 2020

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 May 2020

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 Apr 2020

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 Apr 2020

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 Mar 2020

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 Mar 2020

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 Mar 2020

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.


Constitutional Law—Where Does It Fit? Solving The School Board Prayer Puzzle, Austin Reed Jan 2020

Constitutional Law—Where Does It Fit? Solving The School Board Prayer Puzzle, Austin Reed

University of Arkansas at Little Rock Law Review

No abstract provided.


Balancing Religious Liberties And Antidiscrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda Bauges Jan 2020

Balancing Religious Liberties And Antidiscrimination Interests In The Public Employment Context: The Impact Of Masterpiece Cakeshop And American Legion, Brenda Bauges

Articles

No abstract provided.


American Legion V. American Humanist Ass'n: Exempting Longstanding Governmental Religious Displays From Establishment Clause Scrutiny And How The Endorsement Test Could Have Prevented It, M. Allison Hyde Jan 2020

American Legion V. American Humanist Ass'n: Exempting Longstanding Governmental Religious Displays From Establishment Clause Scrutiny And How The Endorsement Test Could Have Prevented It, M. Allison Hyde

Maryland Law Review

No abstract provided.


Untangling Entanglement, Stephanie H. Barclay Jan 2020

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …


Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee Jan 2020

Religious Accommodation, The Establishment Clause, And Third-Party Harm, Mark Storslee

Journal Articles

In the wake of Burwell v. Hobby Lobby, religious accommodation has become increasingly controversial. That controversy has given rise to a new legal theory gaining popularity among academics and possibly a few Supreme Court justices: the idea that the First Amendment's Establishment Clause condemns accommodations whenever they generate anything beyond a minimal cost for third parties.

The third-party thesis is appealing. But this Article argues that there are good reasons to believe it falls short as an interpretation of the Establishment Clause. In its place, the Article offers a new theory for understanding the relationship between costly accommodations and the …


Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee Jan 2020

Church Taxes And The Original Understanding Of The Establishment Clause, Mark Storslee

Journal Articles

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding to church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps …


Reconsidering Hostile Takeover Of Religious Organizations, B. Jessie Hill Jan 2020

Reconsidering Hostile Takeover Of Religious Organizations, B. Jessie Hill

Faculty Publications

Beginning in 2016, the headlines of major publications began announcing that Donald Trump had successfully completed a “hostile takeover” of the Republican Party. Whether this appraisal is accurate or not, it reflects concern about the associational integrity of a voluntary private organization—the Republican Party—and it suggests that some forms of organizational transformation are problematic. Moreover, the same concern might arise regarding other private associations, including religious associations. Yet, given that some transformation is inevitable and universal within religious and other voluntary organizations, it would be unwarranted to assume that all change within a religious organization is necessarily problematic.

This Article …