First Amendment Commons^™

Revenue Bonds And Religious Education: The Constitutionality Of Conduit Financing Involving Pervasively Sectarian Institutions, Trent Collier

Michigan Law Review

The Establishment Clause - and particularly the issue of government funding of religious education - is one of the murkiest areas of Supreme Court jurisprudence. The Supreme Court has acknowledged as much, and the sharp divide in the Court's most recent forays into Establishment Clause territory illustrates the point that the current jurisprudential standards allow for a broad range of interpretation. There is some hope that the Supreme court will provide further clarification of its Establishment Clause standard in the near future. For now, however, it appears that the dominant mode of the Establishment Clause analysis is the examination of …

Public School Education About Beginnings: Creationism, No! Truth About Science, Yes!, Daniel G. Gibbens

Oklahoma Law Review

No abstract provided.

Faith And Funding: Toward An Expressivist Model Of The Establishment Clause, David Cole

Georgetown Law Faculty Publications and Other Works

This article seeks to provide an alternative to the polarization that so often characterizes debates about church and state. In Part I, the author suggests that there are good policy reasons for supporting faith-based initiatives, and that these reasons ought to be attractive to liberals and progressives, many of whom have opposed faith-based initiatives. Faith-based social services are, after all, social services, and are often the very types of welfare services that liberals and progressives tend to support. Core religious values--in particular, concern about the less fortunate, a belief in human dignity, and a commitment to the possibility of redemption--reinforce …

Vouchers And Steering, Vincent A. Blasi

Faculty Scholarship

Does the Establishment Clause require that educational voucher programs not be designed in a manner that encourages parents to choose religious schools over secular alternatives? If there is such an "anti-steering" principle implicit in the First Amendment, how should courts elaborate and enforce it?

In this response, I will compare how Professors Lupu and Tuttle and the Court majority in Zelman v. Simmons-Harris, the decision last June upholding the Cleveland voucher plan, answer these important questions. I will evaluate their analyses at three levels: (1) basic Establishment Clause values and priorities; (2) doctrinal standard for identifying impermissible favoritism toward …

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Journal Articles

As this Essay goes to press, the Supreme Court is considering whether Ohio's school-choice program violates the First Amendment to the United States Constitution. In my view, the Ohio program is sound public policy, and it is consistent with the Justices' present understanding of the Establishment Clause. I also believe that the Court will and should permit this experiment, and our conversations about its merits, to continue. The purpose of this Essay, though, is not to predict or evaluate ex ante the Court's decision. Instead, my primary aim is to suggest and then sketch a few broad themes that--once the …

Brief Of The Becket Fund For Religious Liberty As Amicus Curiae In Support Of Petitioners, Richard W. Garnett, Kevin J. Hasson, Eric W. Treene, Roman P. Storzer, Anthony R. Picarello Jr.

Court Briefs

Nos. 00-1751, 00-1777, 00-1779
Susan Tave Zelman v. Doris Simmons-Harris

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Summary of the Argument

Petitioners and other amici undoubtedly will address fully how the program at issue in this case should be upheld on the grounds that it involves the same principle that led to this Court upholding the aid in Mueller v. Allen, 463 U.S. 388 (1983), Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481 (1986), and Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. …

How To Apply The Religious Freedom Restoration Act To Federal Law Without Violating The Constitution, Gregory P. Magarian

Michigan Law Review

Learned commentators have called the Religious Freedom Restoration Act of 1993 ("RFRA" or "the Act") "perhaps the most unconstitutional statute in the history of the nation" and "the most egregious violation of the separation of powers doctrine in American constitutional history." In the 1997 case of City of Boerne v. Flores, the Supreme Court struck down the Act in its applications to state and local governments, declaring that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." The Act's applications to federal law, however, survived Boerne, which means that plaintiffs with religious freedom claims against …

The Price Of Vouchers For Religious Freedom, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Their Own Preposessions: The Establishment Clause 1999-2000, Leslie C. Griffin

Scholarly Works

No abstract provided.

Public Funding For Religious Schools: Difficulties And Dangers In A Pluralistic Society, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Brief Amici Curiae Of Christian Legal Society And Union Of Orthodox Jewish Congregations Of America In Support Of Petitioners, Richard W. Garnett, Nathan J. Diament, Carl H. Esbeck

Court Briefs

No. 99-2036
The Good News Club v. Milford Central School

On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit

From the Summary of the Argument

The parties agree that Milford's Community Use Policy creates a limited public forum. See, e.g., Pet. A13 ("We think it clear that the Community Use Policy has created a limited public forum in the Milford school facilities."). And the parties agree that any content restrictions in such fora must be "viewpoint neutral" and constitutionally "reasonable." Pet. A14 & n.8 ("If the Club's use is not a 'religious use' but …

Brief Of Amici Curiae Center For Education Reform Et. Al., In Support Of Appellants, Nicole Stelle Garnett, Richard W. Garnett, Paul D. Clement

Court Briefs

Nos. 00-3055, 00-3060, 00-3063
Doris Simmons-Harris v. Dr. Susan Tave Zelman

On Appeal from the United States District Court for the Northern District of Ohio Eastern Division

From the Introduction and Summary of Argument

As many scholars have recognized, and as far too many economically disadvantaged parents are painfully aware, many of our urban public schools fail to live up to the promise of Brown. Too many poor children are consigned, and their parents resigned, to unsafe and underperforming schools. But Cleveland's school-choice program empowers hundreds of parents, who likely would not otherwise have the choice, to decide whether …

Religion And Education: Whither The Establishment Clause?, Martha Mccarthy

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

"We Do Not Preach, We Teach.": Religion Professors And The First Amendment, Leslie C. Griffin

Scholarly Works

No abstract provided.

Constitutional Law: Vouchers, Sectarian Schools, And Constitutional Uncertainty: Choices For The Unites States Supreme Court And The States, Catharine V. Ewing

Oklahoma Law Review

No abstract provided.

Vouchers And Beyond: The Individual As Causative Agent In Establishment Clause Jurisprudence, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Petitioners' Reply Brief, William H. Meub, Orland Campbell Jr., Richard W. Garnett, Michael Stokes Paulsen

Court Briefs

No. 99-628
Cynthia Andrews v. Vermont Department of Education

On Petition For A Writ Of Certiorari To The Vermont Supreme Court

From the Petitioners' Reply Brief

The question presented in this case is whether the First Amendment allows government to discriminate on the basis of religion in funding school-choice education programs that include private schools. In the Petition, we showed (1) that this issue is nationally important; (2) that this issue is recurrent; and (3) that this issue has generated extraordinary and pervasive conflicts among lower and federal state courts, and between decisions of lower courts and this Court.

Petition For A Writ Of Certiorari, William H. Meub, Orland Campbell Jr., Richard W. Garnett, Michael Stokes Paulsen

Court Briefs

No. 99-628
Cynthia and Douglas Andrews v. Chittenden Town School District

On Petition For A Writ Of Certiorari To The Vermont Supreme Court

From the Reasons for Granting the Writ

This is a case about discrimination - discrimination against "religious ideas, religious people, [and] religious schools." Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 717 (1994) (O'Connor, J., concurring in part and concurring in the judgment). Vermont provides an immensely valuable benefit - tuition - to eligible residents and their high-school-age children. Petitioners have been denied this educational benefit solely because they have chosen a religious …

Monuments To The Past In A Leveling Wind, Benjamin Means

Michigan Law Review

Early in the twentieth century, the Emperor Franz Joseph sponsored a monument to Hungary's history - a Millennium Monument containing statues of the country's heroes, as well as statues of the proud sponsor and his family (p. 5). When the communists took over in 1919, the statues of Franz Joseph and the rest of the Hapsburgs were dragged out of the Millennium Monument and replaced with more politically correct statuary (p. 8). Counterrevolutionaries, though, retook the country and reinstated the Hapsburg Statues in the Millennium Monument - until a later regime once again reshuffled the millennial display (pp. 9-10). Professor …

Tax Exemptions And The Establishment Clause, Erika Lietzan

Faculty Publications

Churches are exempted from a variety of taxes collected by the various levels and jurisdictions of government in the United States. For instance, they are almost always exempt from payment of property tax at the local level and from payment of income tax to both state and federal government. They are often exempt from payment of state sales tax on the products they sell. A person making a contribution to a religious organization is usually entitled to deduct the contribution from his income when calculating both his state and his federal income taxes at the end of the taxable year. …

The Establishment Clause And Government Religious Displays: The Court That Stole Christmas, Jennifer H. Greenhalgh

Touro Law Review

No abstract provided.

Some Realistic Thinking About Secular Effects, Paul E. Salamanca

Law Faculty Scholarly Articles

Notwithstanding complaints about incoherence in Establishment Clause doctrine, courts by and large administer the Clause responsibly. They do so by mediating between a number of powerful considerations, none of which can ever be entirely disregarded. These considerations include, but are not limited to, separation of church and state, the value of religiosity, the imperative of affording equal treatment to religious and similarly situated nonreligious entities, and the proper role of courts in a democratic political system. This is not to say that courts cannot overstep their bounds and provoke an adverse reaction from other powerful elements within the polity. It …

"Land Is Itself A Sacred, Living Being": Native American Sacred Site Protection On Federal Public Lands Amidst The Shadows Of Bear Lodge, Joel Brady

American Indian Law Review

No abstract provided.

Brief On Appeal Of Defendant-Appellant The Board Of Education Of The Kiryas Joel Union Free School District, George Shebitz, Julia R. Cohen, Nahal Motamed, Nathan Lewin, Richard W. Garnett, Anthony J. Bellia Jr.

Court Briefs

No. 81319
Louis Grumet v. George Pataki

From the Introduction

Chapter 390 is tainted only by its history. On its face, it is a neutral law that raises no serious constitutional doubt. Its objective, as described by the Appellate Division -- "to create a constitutionally valid educational program which meets the special education needs of the disabled students residing in the Village of Kiryas Joel, Orange County" -- is unquestionably legitimate. All the statutory criteria it specifies were ratified by this Court in its Kiryas Joel II opinion as "related to legitimate educational concerns." 90 N.Y. 2d at 72. What …

Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld

Michigan Law Review

To get right to the point: Mr. Hacker does not disagree that the Establishment Clause would, in the absence of the Fourteenth Amendment, have prohibited Congress from passing a nationwide religion law like RFRA. He believes, however, that the Fourteenth Amendment has in part repealed the First. Of course, he doesn't want to say repealed. The language of repeal is not pleasant to the ears of those who would like to forget about First Amendment antidisestablishmentarianism. The Fourteenth Amendment did not "repeal any aspect of the text of the [Establishment] Clause," Hacker says, but only "change[d] profoundly the meaning of …

A Response To Professor Rubenfeld, Jonathan D. Hacker

Michigan Law Review

Professor Jed Rubenfeld has offered in these pages an ingenious explanation for why the Supreme Court was right to strike down the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores. Rubenfeld finds in the First Amendment's Establishment Clause a historical and inherent principle he calls "antidisestablishmentarianism": a prohibition on acts of Congress that "disestablish" religion in the several states. Rubenfeld reads the Establishment Clause as proscribing not only congressional acts that "establish" religion but also all congressional acts that "dictate a position on religion for states," including laws designed to ensure that states abide by the requirements …

Moving Toward Neutrality: The National Telecommunications And Information Administration's New Stance On Sectarian Programming, Nancy L. Reynolds

Federal Communications Law Journal

The National Telecommunications and Information Administration (NTIA) has recently reinterpreted its funding policy regarding religious programming to create a policy more consistent with the religion clauses of the First Amendment and more responsive to the goal of government neutrality toward religion. Until 1996, the NTIA categorically denied all funding to government programming that provided any incidental or attenuated benefit to religion. However, in light of recent Establishment Clause cases, the NTIA modified its interpretation of sectarian programming, allowing a radio station to receive government funding even if its programming provides an attenuated or incidental benefit to religion. The NTIA's new …

The Legality Of The Religious Use Of Peyote By The Native American Church: A Commentary On The Free Exercise, Equal Protection, And Establishment Issues Raised By The Peyote Way Church Of God Case, John Thomas Bannon Jr.

American Indian Law Review

No abstract provided.

The Status Of Constitutional Religious Liberty At The End Of The Millennium, Kurt T. Lash

Law Faculty Publications

I have the privilege of introducing the 1998 Bums Lecture Symposium- Religious Liberty in the Next Millennium: Should We Amend the Religion Clauses of the United States Constitution? My role in this Symposium is to acquaint you with the religion clauses of the Constitution- where they came from- where they've been- and where they seem to be today. Our Symposium contributors, Professors Kent Greenawalt and Robert George will discuss just where they think the religion clauses should go in the future.

Talking About Religion In The Language Of The Law: Impossible But Necessary, James Boyd White

Articles

In speaking to this conference about religion and law I am in a decidedly peculiar position, for it may be that every one of you has thought longer and harder about the relation between these two forms of life than I have. When Scott Idleman first asked me to talk to you, I explained that I was no expert, to put it mildly, and that the most that I could offer would be the reflections of a neophyte. He said that this was fine-perhaps he was just desperate for a speaker; perhaps he thought that it might be helpful to …