First Amendment Commons^™

Antidisestablishmentarianism: Why Rfra Really Was Unconstitutional, Jed Rubenfeld

Michigan Law Review

Two months ago, the Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), handing down its most important church-state decision, and one of its most important federalism decisions, in fifty years. Through RFRA, Congress had prohibited any state actor from "substantially burden[ing] a person's exercise of religion" unless imposing that burden was the "least restrictive means" of furthering "a compelling governmental interest." RFRA was a response to Employment Division, Department of Human Resources of Oregon v. Smith, in which the Supreme Court abandoned the very same compelling interest test that RFRA mandated. Smith, overturning decades-old precedent, held …

The Role Of Religion In Public Life And Official Pressure To Participate In Alcoholics Anonymous, Paul E. Salamanca

Law Faculty Scholarly Articles

If religion is an innate aspect of the human experience, it should not be surprising that Alcoholics Anonymous (A.A.), a widely known and arguably religious support group for problem drinkers, has become a common and effective means of combating alcoholism. Also, it should not be surprising that probation officers, parole officers, judges, bar overseers, wardens, and myriad others exercising state authority routinely push individuals toward A.A. Arguably, however, official referral of problem drinkers to A.A. violates current interpretations of the Establishment Clause because of the quasi-religious nature of the program.

Although separationism helps both church and state, our Constitution does, …

Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan

Michigan Journal of Gender & Law

According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage," where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriages require "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals or justifications, betrays the Establishment Clause of the U.S. Constitution.

Common Schools, Uncommon Values: Listening To The Voices Of Dissent, Rosemary C. Salomone

Faculty Publications

(Excerpt)

Education in America as we know it today draws its origins from the philosophical perspectives and political objectives of the common school reformers over a century ago. For them, mass education was a primary vehicle for defining ourselves as a nation. Schools would develop civic virtue and a national character through a shared set of values reflected in the school curriculum. The common school experience, offered to all regardless of social class or ethnic background, would assimilate the hordes of immigrants coming to our shores and meet the emerging needs of industrialization. Individuals across the economic spectrum, afforded education …

Viewpoints From Olympus, Kent Greenawalt

Faculty Scholarship

This Essay examines the Supreme Court's treatment of content and viewpoint discrimination in Rosenberger v. Rector and Visitors of the University of Virginia. In that opinion, the Court adopted a very expansive approach to what constitutes viewpoint discrimination, the form of content discrimination most disfavored by the Constitution. The Court held that a public university could not decline to fund publication of Wide Awake, a magazine devoted to proselytizing for Christianity, if it funded other student publications. Justice Kennedy's opinion for the Court accepted the argument of the sponsors of Wide Awake that the University had engaged in …

Deja Vu, All Over Again: The Supreme Court Revisits Religious Liberty, Gerard V. Bradley

Journal Articles

The Supreme Court is at it again. The justices are looking this term at two church-state questions which have long perplexed them. One is the yuletide baby-Jesus-in-the-public-square problem. This time, in the case of Pinette v. Review Board, a private group set up a Latin cross near the Ohio state capitol. This public space has long been used by all sorts of private speakers, including, it would seem, people with religious messages. The Knights of the Ku Klux Klan, Ohio Realm put up a sign disclaiming all public sponsorship. Was this still an "establishment" of religion? Federal appeals court …

The Separation Of The Religious And The Secular: A Foundational Challenge To First Amendment Theory, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

The Death Of Graduation Prayer: The Parrot Sketch Redux, J. Alexander Tanford

Articles by Maurer Faculty

No abstract provided.

Winner, Best Appellate Brief In The 1995 Native American Law Student Association Moot Court Competition, Daniel L. Cheyette, Andrew J. Bobzien

American Indian Law Review

No abstract provided.

Laws Intentionally Favoring Mainstream Religions: An Unhelpful Comparison To Race, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.

Different Religions, Different Politics: Evaluating The Role Of Competing Religious Traditions In American Politics And Law, Daniel O. Conkle

Articles by Maurer Faculty

In addressing the role of religion in politics and law, American political theory has strongly embraced the principle of religious equality. In this article, I explain how this principle has evolved and how it has nourished the privatization of religion and the secularization of public discourse by generating the view that public evaluations of religion are inappropriate. Under this view, religion is a private good that lacks public significance. As matters merely of private taste, matters that cannot be evaluated publicly, religious positions on political issues are not to be "imposed" on other citizens.

I challenge this reading of the …

Lee V. Weisman: A New Age For Establishment Clause Jurisprudence?, Elizabeth Brandt

Articles

No abstract provided.

Lemon Lives, Daniel O. Conkle

Articles by Maurer Faculty

This article responds to an article by Professor Michael Stokes Paulsen, entitled "Lemon Is Dead," in which Paulsen interprets the Supreme Court's decision in Lee v. Weisman to repudiate the Establishment Clause test of Lemon v. Kurtzman and to replace it with a test that limits the Clause to cases involving direct or indirect coercion. The article disputes Paulsen's interpretation of Weisman, and it also disputes his normative argument in support of the coercion approach. It contends that Lemon survives Weisman, and that Lemon's multi-faceted and context-specific approach, however vague, is preferable to a test that focuses exclusively on the …

The Integration Of Religious Liberty, John Witte Jr.

Michigan Law Review

A Review of A Nation Dedicated to Religious Liberty: The constitutional Heritage of the Religion Clauses by Arlin M. Adams and Charles J. Emmerich

Does The United States Need An Establishment Clause?: God Loveth Adverbs, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Justice Harlan And The Bill Of Rights: A Model For How A Classic Conservative Court Would Enforce The Bill Of Rights, Nadine Strossen

Articles & Chapters

No abstract provided.

Free Exercise In The Free State: Maryland's Role In Religious Liberty And The First Amendment, Kenneth Lasson

All Faculty Scholarship

Maryland arguably holds the distinction of being the state whose early history most directly ensured, and whose citizenry was most directly affected by, the First Amendment's protection of religious freedom. Because of its relatively diverse religious population, Maryland stood out as both a champion of tolerance and a hotbed of discrimination for most of its colonial experience. Similarities have been pointed out between the first provincial government in St. Mary's, Maryland, and the American plan under the Constitution, particularly with respect to religious liberty.

This article offers a brief overview of the religious history of Maryland, focuses on important state …

The Believer And The Powers That Are, Elizabeth Ferguson

Michigan Law Review

A Review of The Believer and the Powers That Are by John T. Noonan, Jr.

The Constitution, Religion, And American Public Life, Gerard V. Bradley

Journal Articles

From the Introduction

Even a nonspecialist familiar with all of the contiguous disciplines - religious studies, theology, all facets of American history, the history of Christianity, sociology of knowledge, even constitutional and legal history up to World War II - would never guess what American constitutional law of church and state really is. The temptation after reading the actual cases concerning church and state is to dismiss them as stupid. Church-state is the realm of "legendary inconsistencies," as one sympathetic scholar put it.

The sorriest scene in this legal wonderland is a recurring one, and plays in the public schoolroom. …

Symbols, Perceptions, And Doctrinal Illusions: Establishment Neutrality And The "No Endorsement" Test, Steven D. Smith

Michigan Law Review

Section I of this article briefly describes the emergence and development of the "no endorsement" test. Section II then seeks to show that the test is deficient as doctrine, and thus incapable of providing the clarity and coherence that current doctrine so sorely lacks. Section III considers various likely theoretical justifications for the "no endorsement" proposal, including the justification advanced by Justice O'Connor, and concludes that these justifications, like the test itself, are seriously flawed. This conclusion provokes a question: If the "no endorsement" test is doctrinally deficient and without theoretical justification, why has it elicited such widespread enthusiasm? Section …

Book Review. Church-State Relationships In America By Gerald V. Bradley, Richard M. Fraher

Articles by Maurer Faculty

No abstract provided.

The Establishment Clause: Religion And The First Amendment, Gerard V. Bradley

Journal Articles

The Establishment Clause: Religion and the First Amendment. By Leonard W. Levy. New York: Macmillan Publishing Company, 1986. 236 pp. $16.95.

With this book the author of seminal works on freedom of the press and the privilege against self-incrimination focuses his considerable talents upon perhaps the most nagging constitutional problem of all: church and state. Leonard Levy's sights are clearly fixed upon Ronald Reagan, William Rehnquist, and other "nonpreferentialists," whom he arraigns on charges of willfully distorting history to buttress their conservative political views on school prayer and aid to parochial schools.

Corporation Of The Presiding Bishop Of The Church Of Jesus Christ Of Latter-Day Saints V. Amos, Lewis F. Powell Jr

Supreme Court Case Files

No abstract provided.

A Moment Of Silence: A Permissible Accommodation Protecting The Capacity To Form Religious Belief, Andrew Woodbridge Hall

Indiana Law Journal

No abstract provided.

The Secular Meaning Behind The Lemon Test: Lynch V. Donnelly

Touro Law Review

No abstract provided.

First Amendment Restrictions On Title I Programs In Private Schools, Laura Gaston Dooley

Law Faculty Publications

No abstract provided.

Religious Convictions And Lawmaking, Kent Greenawalt

Michigan Law Review

In Part I, I introduce the subject of liberal democracy, rationality, and religion. I explain briefly why this subject merits our attention. I then indicate variant positions about it and my own summary conclusions. I develop a partial model of our liberal democracy from which the issue can be addressed in context. I next consider two kinds of concrete social issues, consenting sexual acts among adults and the protection of animals and the natural environment. During this treatment I indicate more fully how religious convictions affect judgments about desirable laws, and I analyze the claim that good citizens should not …

Witters V. Washington Department Of Services For Blind, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Mueller V. Allen, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Hunt V. Mcnair, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.