Law Commons^™

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract 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 …

Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett

Richard W Garnett

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …

Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett

Richard W Garnett

The First Amendment’s “Establishment Clause” is widely thought to protect “conscience.” Does it? If so, how? It is proposed in this paper that the no-establishment rule does indeed promote and protect religious liberty, and does safeguard conscience, but not (or, at least, not only) in the way most people think it does, namely, by sparing those who object from the asserted injury to their conscience caused by public funding of religious activity. The Supreme Court’s decision in Hein v. Freedom from Religion Foundation - a case in which the Justices limited taxpayer standing to bring Establishment Clause claims - reminds …

Religious Freedom, Church Autonomy, And Constitutionalism, Richard W. Garnett

Richard W Garnett

No abstract provided.

Children's Beliefs And Family Law, Margaret F. Brinig

Margaret F Brinig

In a recent series of opinions authored by Justice Stevens, the Court has recognized that children may have independent religious rights, and that these may be in conflict with their parents'. The questions for this piece are whether considering children's rights independently is a good thing whether it is warranted by children's actual religious preferences and whether children's religious activities actually do anything measurable for the children.

I do not advocate that the Supreme Court become more involved with family law than it has been since the substantive due process days of Meyer and Pierce. I am also not one …

Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

Protecting Religious Liberty: Judicial And Legislative Responsibilities, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

The Disincorporation Proclamation: Emancipating The Establishment Clause From The Fourteenth Amendment, Martin Wishnatsky

Martin Wishnatsky

No abstract provided.

Corporations, Taxes, And Religion: The Hobby Lobby And Conestoga Contraceptive Cases, Steven J. Willis

UF Law Faculty Publications

Beginning in 2013, the federal government mandated that general business corporations include contraceptive and early abortion coverage in large employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act.

So far, courts have been reluctant to hold corporations have religious rights of their own; as a …

Texas Cheerleaders And The First Amendment: Can You Cheer For God At A Football Game?, Brett A. Geier

Brett A Geier

The Kountze High School Cheerleaders in Kountze, Texas last year placed religious messages on run-through banners at the pre-game ceremonies for its football team. When district officials directed the cheerleaders to cease placing the messages on the banners, the cheerleaders sought relief under the Free Exercise Clause and free speech doctrine. In the spring of 2013, the District Court enjoined the school from preventing the cheerleaders from placing religious messages on the banners stating that the act did not violated the Establishment Clause. This particular case has multiple issues that must be addressed: First Amendment conflict; free speech fora, religious …

"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell

Frederick Mark Gedicks

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked Establishment Clause limits on such exemptions. The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion—that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …

Religious Pretenders In The Courts: Unmasking The Imposters, John O. Hayward

John O. Hayward

When courts decide First Amendment “Free Exercise” cases, they often are confronted with the daunting task of defining what exactly is a “religion.” This article examines how judicial definitions and interpretations of religious faith have evolved over many decades, including legal recognition of Wicca (modern day witchcraft) and Hare Krishna as “religions,” as well as courts steering clear of the issue whenever possible, for example, when faced with an adherent of the “Church of Body Modification” who claims her employer’s dress code violates her religion. It also explores how courts have sought to uncover deception and fraud hiding behind disingenuous …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

Anatomy Of The Reasonable Observer, Jessie Hill

Jessie Hill

The “reasonable observer”—the fictional person from whose perspective we are to judge whether a governmental display or practice violates the Establishment Clause—has been under fire for decades. Primarily, critics argue that the reasonable observer, as conceived by the Supreme Court, is incapable of representing a community perspective because he does not sufficiently resemble a flesh-and-blood person. This criticism can be further articulated as two specific complaints: first, that too much knowledge is imputed to the reasonable observer, making him more omniscient than the average passerby; and second, that the reasonable observer, like the average judge, is biased toward a majoritarian …

A Corporation Has No Soul - The Business Entity Law Response To Challenges To The Contraceptive Mandate Under The Ppaca, Thomas E. Rutledge

Thomas E. Rutledge

The most contentious matter in the implementation of the Patient Protection and Affordable Care Act (the “PPACA”) is not a question of health care, but rather one of the law of business organizations. The dispute has been over the requirement that group health insurance plans provide, on a no-cost sharing basis, coverage for a variety of procedures and prescription medicines involving contraception and what are described as “abortificants.”

The class of suits subject to this discussion were filed by what are not religious organizations but rather for-profit business ventures, asserting that they should be exempt from the requirements of the …

U.S. Asylum Law As A Path To Religious Persecution, Jack C. Dolance Ii

Jack C Dolance II

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark however — at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion” — in whatever form that religion may take. In the asylum context, then, “religion” must be …

For-Profit Corporations, Free Exercise, And The Hhs Mandate, Scott W. Gaylord

Scott W. Gaylord

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). Federal district courts have reached conflicting decisions in the fifteen cases decided to date, leaving the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits to sort out the complex relationship between the free …

Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark

Faculty Scholarship

Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism …

Religions As Sovereigns: Why Religion Is "Special", Elizabeth A. Clark

Elizabeth A. Clark

Policing Terrorists In The Community, Sahar F. Aziz

Sahar F. Aziz

Twelve years after the September 11th attacks, countering domestic terrorism remains a top priority for federal law enforcement agencies. Using a variety of reactive and preventive tactics, law enforcement seeks to prevent terrorism before it occurs. Towards that end, community policing developed in the 1990s to combat violent crime in inner city communities is being adopted in counterterrorism as a means of collaborating with Muslim communities and local police to combat “Islamist” homegrown terrorism. Developed in response to paramilitary policing models, community policing is built upon the notion that effective policing requires mutual trust and relationships among law enforcement and …

Heffron V. International Society For Krishna Consciousness Inc.: A Restrictive Constitutional View Of The Proselytizing Rights Of Religious Organizations , Michael M. Greenburg

Pepperdine Law Review

The persistent efforts of religious organizations to reach their public have consistently been met with governmental limitation due to the often conflicting interests of public order, and free speech and expression. Heffron v. International Society for Krishna Consciousness, Inc. represents the Court's latest redefinition of the extent of permissible limitations upon the activities of these groups. The author examines the decision in light of the traditional criteria for permissible time, place, and manner restrictions upon free speech and evaluates the Court's implementation of these restrictions with respect to the activities of the Krishna group. The impact of the decision upon …

A New Standard Of Review In Free Exercise Cases: Thomas V. Review Board Of The Indiana Employment & Security Division, Lynn Mccutchen Gardner

Pepperdine Law Review

In Thomas v. Review Board of the Indiana Employment Security Division, the United States Supreme Court was called upon to clarify the appropriate level of review to be applied in cases which examine the first amendment right to free exercise of religion. The Court ruled that the "compelling state interest" test is the proper standard to be used. The Court also accorded first amendment protection to beliefs which are not shared by other members of a religious group and which are instead the unique interpretation of an individual member and not acceptable, logical, consistent or comprehensible to others.

Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney

Pepperdine Law Review

Justice Hugo L. Black served on the United States Supreme Court over a period of thirty-four years, encompassing Supreme Court terms from 1937 to 1971. During this period, the subject of the constitutional limitations of the freedom of religion was increasingly subjected to intense social pressures. Justice Black figured prominently in the development of constitutional law as the Supreme Court attempted to give meaning to the establishment and free exercise clause of the first amendment. He wrote the majority opinions which dealt with the establishment clause in the Everson, McCulloin, Engel and Torcaso cases. Yet, on later occasions, Justice Black …

Symposium Introduction: The Competing Claims Of Law And Religion: Who Should Influence Whom? , Robert F. Cochran Jr., Michael A. Helfand

Michael A Helfand

No abstract provided.

Tactics, Strategies & Battles—Oh My: Perserverance Of The Perpetual Problem Regarding Preaching To Public Shool Pupils & Why It Persists, Casey S. Mckay

Casey Scott McKay

After reviewing the history of the religious war on Darwin’s Theory of Evolution, my article, “TACTICS, STRATEGIES & BATTLES—OH MY: PERSERVERANCE OF THE PERPETUAL PROBLEM REGARDING PREACHING TO PUBLIC SHOOL PUPILS & WHY IT PERSISTs,“ examines why such a seemingly well-settled issue survives and even, to some extent, prospers.

First, by exploiting common misconceptions among the American public, lawmakers are able to take advantage of ignorance driven by strong emotions. Next, religious special interests groups, with seemingly unlimited funds, thrust propaganda supported by worldwide media reinforcement on an already vulnerable American public. Thus, irresponsible state legislators, caught between a rock …

The Naked Private Square, Ronald J. Colombo

Ronald J Colombo

In the latter half of the twentieth century, America witnessed the construction of a “wall of separation” between religion and the public square. What had once been commonplace (such as prayer in public schools, and religious symbols on public property) had suddenly become verboten. This phenomenon is well known and has been well studied.

Less well known (and less well studied) has been the parallel phenomenon of religion’s expulsion from the private square. Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable …

Marsh V. Chambers: The Supreme Court Takes A New Look At The Establishment Clause, Diane L. Walker

Pepperdine Law Review

No abstract provided.

Some Observations On The Establishment Clause, William French Smith

Pepperdine Law Review

As evidenced by current interpretations of the establishment clause, lower federal court decisions indicate an increased tendency of hostility toward religion. In this article, Attorney General William French Smith surveys the history of the establishment clause and Supreme Court decisions regarding religious issues. Attorney General Smith then notes the recent success of the Reagan Administration's efforts, through amicus curiae briefs, to advocate an interpretation of the establishment clause which permits the states to take an attitude of benevolent neutrality toward religion. The article then concludes that such a position is both historically and judicially sound.

Public Policy Against Religion: Doubting Thomas , Richard H. Seeburger

Pepperdine Law Review

In free exercise cases, the Supreme Court has adopted a least restrictive alternative test in an attempt to maximize protection for religiously motivated practices. Because the least restrictive alternative test only considers the importance of the governmental interest and the availability of alternative means to accomplish those interests, thereby ignoring the importance of the burdened religious activity to the individual and the degree of burden on religious activity, all religious interests are treated equally when asserted against a governmental interest. Under such an inflexible and brittle test, the Supreme Court has recently denied religious claims which had previously been recognized. …

Avoiding Religious Apartheid: Affording Equal Treatment For Student-Initiated Religious Expression In Public Schools , John W. Whitehead

Pepperdine Law Review

No abstract provided.