First Amendment Commons^™

Debate: The Contraception Mandate And Religious Freedom, Steven D. Smith, Caroline Mala Corbin

Articles

No abstract provided.

Justice Stevens, Religion, And Civil Society, Gregory P. Magarian

Scholarship@WashULaw

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his thirty-five years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he opposed exempting religious believers from laws that interfered with religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with hostility toward religion. This article debunks that conventional analysis …

Brief Amici Curiae Of Christian Medical And Dental Associations, Beta Upsilon Chi, And Officers Of Various Christian Legal Society Student Chapters In Support Of Petitioner, Kelly J. Shackelford, Hiram S. Sasser Iii, Jeffrey C. Mateer, Roger L. Byron, Erin Leu, Thomas C. Berg, Richard W. Garnett

Court Briefs

No. 08-1371
Christian Legal Society Chapter of University of California, Hastings College of the Law v. Leo P. Martinez

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

From the Introduction and Summary of Argument

This case poses the question whether a student group organized around religious beliefs will be able to ensure these beliefs are shared by its leaders and voting members, and still be able to participate in a program at a public educational institution designed to encourage speech from a wide range of student groups.

The University of California-Hastings Law School …

Establishing Inequality, Gene R. Nichol

Michigan Law Review

Part I outlines Nussbaum's thesis and her similarly interesting, if perhaps not always completely consistent, applications of it. Part II touches on some challenges and potential shortcomings her theory presents-for clearly there are such. But, in Part III, I argue that her wide-ranging study of the work of the religion clauses nonetheless touches something residing at the core of American citizenship. No bosses. No masters. No insiders. None outcast. Finally, and far more idiosyncratically, in Part IV I explore and expand on Nussbaum's thesis in light of a modestly serious and rather public dispute over religious equality that occurred at …

Strings Attached: An Analysis Of The Eruv Under The Religion Clauses Of The First Amendment And The Religious Land Use And Institutionalized Persons Act, Alexandra Lang Susman

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Yellow Snow On Sacred Sites: A Failed Application Of The Religious Freedom Restoration Act, Joshua A. Edwards

American Indian Law Review

No abstract provided.

"Excluding Religion": A Response, Richard W. Garnett

Journal Articles

In a thorough and thoughtful article, Excluding Religion, Prof. Nelson Tebbe asks "whether the government may select religious entities for exclusion from its support programs?" and concludes that, sometimes, it may. "The government," he contends, "need not remain neutral toward religion in its support programs[.]"

In this short response to Tebbe's paper, I first suggest that the reasons Tebbe offers for such exclusion - including "promoting equal citizenship for members of minority faiths . . . , fostering community concord, [and] respecting taxpayers' freedom of conscience", are not particularly strong. Next, I turn to the various "limits" that Tebbe …

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 …

Accommodating Religion And Law In The Twenty-First Century, Andrew J. King

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Nineteenth-Century Free Exercise Jurisprudence And The Challenge Of Polygamy: The Relevance Of Nineteenth-Century Cases And Commentaries For Contemporary Debates About Free Exercise Exemptions, Clark B. Lombardi

Articles

Does the Free Exercise Clause of the U.S. Constitution require judges to exempt religious objectors from the application of nondiscriminatory and otherwise applicable laws? Over the last twenty years, judges and academics have debated fiercely whether the Clause should be interpreted to provide religiously observant citizens with a right to “free exercise exemptions.” The debate has led indirectly to a new interest in nineteenth-century views on free exercise jurisprudence. In this Article, I will examine the scholarship on nineteenth-century free exercise jurisprudence to date and ask what it adds to our understanding of the Clause and the question of exemptions.

In Cases Involving Sites Of Religious Significance, Plaintiffs Will Fall In The Gap Of Judicial Deference That Exists Between The Religion Clauses Of The First Amendment, Jeff Pinter

American Indian Law Review

No abstract provided.

Splitting Hairs: Why Courts Uphold Prison Grooming Policies And Why They Should Not, Mara R. Schneider

Michigan Journal of Race and Law

Part I of this Note describes the substance of prison grooming policies and provides a sampling of cases that have challenged these policies under the Equal Protection and Free Exercise Clauses. Part II explores three theories of discrimination that describe certain types of discriminatory conduct that could be prohibited by the Equal Protection and Free Exercise Clauses. These theories inform the definition of "equal protection of the laws" and impact the analysis of equal protection challenges to prison grooming policies. Part III explores the "religious exemptions" doctrine and explains how courts have interpreted the protections offered to religious groups by …

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 …

Miranda, The Constitution, And Congress, David A. Strauss

Michigan Law Review

Are Miranda warnings required by the Constitution, or not? If they are, why has the Supreme Court repeatedly said that the rights created by Miranda are "not themselves rights protected by the Constitution"? If not, why can't an Act of Congress, such as 18 U.S.C. 3501, declare them to be unnecessary? These were the central questions posed by United States v. Dickerson. It is not clear that the majority opinion ever really answered them. The majority said that "Miranda is constitutionally based," that Miranda has "constitutional underpinnings," that Miranda is "a constitutional decision," and that Miranda "announced a constitutional rule." …

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

Cornell Law Faculty Publications

No abstract provided.

Petition For Writ Of Certiorari, Richard W. Garnett, Michael Stokes Paulsen, David C. Gibbs Jr., David C. Gibbs Iii, Charlotte A. Cover, Barbara J. Weller

Court Briefs

No. 00-131
K.D.M. v. Reedsport School District

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

From the Reasons for Granting the Writ

The Ninth Circuit conceded that the regulation at issue below " 'discriminates' against students in religious schools, i.e., treats them differently by denying them state services on the school grounds." KDM, 196 F.2d 1046, 1051 (9th Cir. 1999) (App. B at 11 a). This, then, is a case about admitted discrimination - discrimination against "religious ideas, religious people, [and] religious schools." Board of Educ. of Kiryas Joel v. …

The Normalized Free Exercise Clause: Three Abnormalities, Fredrick Mark Gedicks

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.

The Constitutionality Of Mandatory Public School Community Service Programs, Rodney A. Smolla

Law Faculty Publications

Proposals for public service programs have long had currency in America, and may be gaining a certain millennium momentum in current public debate. While proposals for national public service programs of varying ambition and scope continue to be debated, at the local level a growing number of U.S. public school districts are implementing community service programs for high school students. Community service programs generally require students to complete a specified number of hours of service as a condition for graduation. In a typical program, a student may be required to complete forty to sixty hours of community service with organizations …

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 …

The Convergence Of The First Amendment And Vatican Ii On Religious Freedom, Robert F. Drinan S.J.

Michigan Law Review

Did the United States radiate the views of James Madison on the free exercise of religion to the world? That, in essence, is the main thrust of this provocative study by John T. Noonan, Jr., Professor Emeritus at the University of California Law School, Berkeley, and a Senior Judge of the U.S. Court of Appeals for the Ninth Circuit. Noonan is, of course, the author of magisterial books on abortion, birth control, legal ethics, and related issues. He writes as a committed Catholic who takes pride in the religion that he learned as a child in his native Brookline, Massachusetts. …

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 …

Restoring Rights To Rites: The Religious Motivation Test And The Religious Freedom Restoration Act, Steven C. Seeger

Michigan Law Review

This Note argues that the religious motivation test best secures the religious liberty guaranteed by the Constitution and the RFRA. Part I examines the text and legislative history of the Act and establishes that Congress intended to protect religiously motivated practices. Part II argues that the free exercise case law prior to Smith, to which the RFRA explicitly appeals, did not require litigants to prove centrality or compulsion. Part III demonstrates that the religious motivation test protects the full spectrum of religious practices and religious groups, unlike the centrality test and the compulsion test. Part IV illustrates that the motivation …

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 …

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 …

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 …

Retracing First Amendment Jurisprudence Under The Free Exercise Clause: Culmination In Church Of The Lukumi Babalu Aye, Inc. V. City Of Hialeah And Resolution In The Religious Freedom Restoration Act, Laura A. Colombell

University of Richmond Law Review

The above comments of Justice Stewart recognize the myriad of religious beliefs and practices which exist in our nation of diverse people. Protecting them all from government infringement has become an increasingly lofty aim as the number and nature of religions in the United States continue to grow.

The First Americans And The "Free" Exercise Of Religion, Martin C. Loesch

American Indian Law Review

No abstract provided.

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.