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Articles 1 - 11 of 11
Full-Text Articles in Law
Religious Liberty That Almost Wasn't: On The Origin Of The Establishment Clause Of The First Amendment, Gregory C. Downs
Religious Liberty That Almost Wasn't: On The Origin Of The Establishment Clause Of The First Amendment, Gregory C. Downs
University of Arkansas at Little Rock Law Review
The purpose of this article is to briefly examine the origin of the Establishment Clause in the event sometimes referred to as the "Virginia Experience," and to consider the possibility that the significant "leading roles" in the First Amendment's creation were not limited to Jefferson and Madison. Further, Madison's leading role in the actual sponsorship of the First Amendment may not have been entirely voluntary. With the ever-present litigation and controversies revolving around the extent and meaning of the First Amendment's Establishment Clause, the overlooked history of the creation of the First Amendment is both interesting and instructive in the …
Symposium Introduction: The Religion Clauses In The 21st Century, William P. Marshall, Vivian E. Hamilton, John E. Taylor
Symposium Introduction: The Religion Clauses In The 21st Century, William P. Marshall, Vivian E. Hamilton, John E. Taylor
Faculty Publications
No abstract provided.
An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger
An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger
Law Faculty Publications
No abstract provided.
The Future Of Religious Pluralism: Justice O'Connor And The Establishment Clause, Deborah J. Merritt, Daniel C. Merritt
The Future Of Religious Pluralism: Justice O'Connor And The Establishment Clause, Deborah J. Merritt, Daniel C. Merritt
Deborah J Merritt
Justice Sandra Day O’Connor offered a distinctive vision of the Establishment Clause. This article puts that vision in context by reviewing the history of religious pluralism, tolerance, and intolerance in the United States. The article also draws upon psychology research to illuminate the polarizing tendencies that continuously undermine religious tolerance. These sections of the article offer essential background that many observers overlook when analyzing the Establishment Clause. Finally, the article argues that Justice O’Connor’s Establishment Clause principles offer the best promise of promoting religious pluralism more fully in the United States.
Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer
Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer
Scholarly Works
No abstract provided.
Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Robert W. Tuttle, Ira C. Lupu
Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Robert W. Tuttle, Ira C. Lupu
GW Law Faculty Publications & Other Works
This essay addresses the proliferation of constitutional issues involving the military chaplaincy. The authors query how the chaplaincy is consistent with the Establishment Clause of the Constitution's First Amendment and note that the answer generally derives from one or more of the following paradigms: (1) Establishment Clause history; (2) Public funding of religion; or (3) Governmental display of religious messages. They suggest that an adequate approach for Establishment Clause analysis of the military chaplaincy requires a different framework. To that end, Part I of this essay describes Katcoff v. Marsh, the most important decision on the constitutionality of the military …
The Establishment Clause And Religious Expression In Governmental Settings: Four Variables In Search Of A Standard, Daniel O. Conkle
The Establishment Clause And Religious Expression In Governmental Settings: Four Variables In Search Of A Standard, Daniel O. Conkle
Articles by Maurer Faculty
In his controversial but controlling opinion in Van Orden v. Perry, Justice Breyer rejected an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Texas State Capital. Breyer argued that existing Establishment Clause formulations, including the Lemon and endorsement tests, were inadequate to resolve the case, so he relied instead on legal judgment, an approach informed by doctrinal and policy considerations but not controlled by any formal test. In this Essay, I suggest that Justice Breyer may have been right in Van Orden-if not in his result, then at least in approaching the question as he …
The Constitutional Structure Of Disestablishment, Ian C. Bartrum
The Constitutional Structure Of Disestablishment, Ian C. Bartrum
Scholarly Works
This article proceeds in the structuralist tradition, which Professor Charles Black describes as "the method of inference from the structure and relationships created by the Constitution." The article takes a structural approach to the Establishment Clause: it reexamines the theoretical foundations of disestablishment, and infers a constitutional structure designed to create a dialectical relationship between political institutions and social institutions. The structural thesis requires that our political institutions safeguard individual liberty of conscience by bracketing all religious questions. The antithesis ensures the existence of free and independent social organizations dedicated to building public virtue. The article then applies the structural …
A Call For Judicial Restraint: Federal Taxpayer Grievances Challenging Executive Action, Debra L. Lowman
A Call For Judicial Restraint: Federal Taxpayer Grievances Challenging Executive Action, Debra L. Lowman
Seattle University Law Review
This Article calls upon the Supreme Court to stay the Judiciary's hand in taxpayer grievances concerning purely executive action. Parts II and III of the Article provide the relevant background material for an understanding of the subject matter. Specifically, Part I recounts the evolution of taxpayer standing, taking the reader from the Supreme Court's decision in Frothingham to its counterpoint decision in Flast. Part III summarizes the Seventh Circuit's unprecedented decision in Freedom. Part IV demonstrates that taxpayer standing as conceived by the Freedom court does not conform to the standing paradigm formulated in Flast, and moreover, …
Shifting Toward Balance, Not Conservatism: The Court's Interpretation Of The Lemon Test's Legislative Intent Prong And Reaction From The Electorate, Kedrick N. Whitmore
Shifting Toward Balance, Not Conservatism: The Court's Interpretation Of The Lemon Test's Legislative Intent Prong And Reaction From The Electorate, Kedrick N. Whitmore
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.
The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation-Enhancing Review, Gregory P. Magarian
The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation-Enhancing Review, Gregory P. Magarian
Scholarship@WashULaw
First Amendment interests in both speech and religion often collide with one another. A political activist claims a free speech interest in the right to purchase advertising time on a television network, while the network claims a free speech interest in its decision not to sell the time. A religious enclave claims a free exercise interest in having a dedicated public school district, while its neighbors claim a nonestablishment interest in the government's not extending the group special treatment. In this article Professor Magarian examines the phenomenon of colliding First Amendment interests, explains and critiques the Supreme Court's failure to …