First Amendment Commons^™

Is This A Christian Nation?: Virtual Symposium September 25, 2020, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Contracts And The Constitution In Conflict: Why Judicial Deference To Religious Upbringing Clauses Infringes On The First Amendment, Elica Zadeh

Pepperdine Law Review

When a Hasidic person files for divorce under New York law, either party to the marriage may invoke a declaratory judgment action to establish certain rights in a settlement agreement. If children are involved, such an agreement may include a religious upbringing clause, dictating that the child is to be raised in accordance with their then-existing religion—Hasidism. Deviation from the contract risks removal from the aberrant parent who intentionally or unwittingly allows the child to wane into secularism. Although the child’s best interest is the cornerstone of custodial analysis, a problem emerges when his or her best interest is couched …

First Amendment “Harms”, Stephanie H. Barclay

Indiana Law Journal

What role should harm to third parties play in the government’s ability to protect religious rights? The intuitively appealing “harm” principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in light of the Supreme Court’s pending cases in Little Sisters of the Poor and Fulton v. City of Philadelphia. While focusing on harm appears at first to provide an appealing, simple, and neutral principle for avoiding other difficult moral questions, the definition of harm …

Government Speech Doctrine—Legislator-Led Prayer's Saving Grace, Daniel M. Vitagliano

St. John's Law Review

(Excerpt)

This Note argues that Lund was decided incorrectly in part because the Fourth Circuit failed to analyze the type of speech at issue before assessing the constitutionality of the prayer practice. This Note is composed of four parts. Part I surveys the Supreme Court’s legislative prayer jurisprudence—Marsh and Town of Greece. Part II outlines Lund and Bormuth, and the Fourth and Sixth Circuits’ dissimilar applications of the Supreme Court’s precedent. Part III argues that courts must first classify legislative prayers as either government or private speech before assessing whether a prayer practice violates the Establishment Clause. It further argues …

Free Exercise Standing: Extra-Centrality As Injury In Fact, Brendan T. Beery

St. John's Law Review

(Excerpt)

Part I of this Article surveys standing doctrine generally and tackles the problem of psychic insult—what might fairly, in some cases, be characterized as hurt feelings—as an injury. Part II addresses the special problems of finding concrete and palpable injuries in religion cases, noting that it is more difficult to identify such injuries in Establishment Clause cases than in free exercise cases. When free exercise is viewed as dynamic and kinetic, free exercise injuries are discernible and concrete: they occur when a person is forced to participate in religious undertakings or express beliefs against his or her will, or …

Employing Smith To Prevent A Constitutional Right To Discriminate Based On Faith: Why The Supreme Court Should Affirm The Third Circuit In Fulton V. City Of Philadelphia, Margaret Smiley Chavez

American University Law Review

In the interest of the children in the Philadelphia foster care system, the City of Philadelphia prohibits its contracting foster care agencies from discriminating against prospective foster care parents on account of race, religion, and sexual orientation, among other things. Despite this requirement, in 2018, two foster care agencies—Catholic Social Services (CSS) and Bethany Christian Services— that have annual contracts with Philadelphia refused to certify same-sex couples as foster parents for religious reasons. While Bethany Christian Services reached an agreement with the city, CSS did not. As a result, the city froze foster care placement referrals to CSS and did …

Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson

Washington and Lee Law Review

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

Establishment Of Religion Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Legislative Prayer: Historical Tradition And Contemporary Issues, Chad West

Utah Law Review

The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion . . . .”1 There is a great deal of confusion among scholars, lower federal courts, and the Justices of the Supreme Court over appropriate Establishment Clause principles,2 but it is at least clear that the government “may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith, or tends to do so.”3 It has long been settled that state and local legislative bodies may, …

Devotion ̶T̶O̶ And The Rule Of Law: Acknowledging The Role Of Religious Values In Judicial Decision-Making, Priya Purohit

Indiana Law Journal

This Comment advocates for the acknowledgment of religious values in judicial decision-making in three parts. Part I explores the role of religion in American politics, and more specifically, the role of religion in federal judicial confirmation hearings and state-level judicial elections. Membership to an institutionalized religion often performs an essential gatekeeping function when it comes to assessing the background or personal values of a candidate for political or judicial office. The initially positive role of religion in judicial selection processes suggests that the practice of refusing to acknowledge the role that religion likely already plays in judicial decision-making is wholly …

"No Person . . . Shall Ever Be Molested On Account Of His Mode Of Worship Or Religious Sentiments . . . .": The Northwest Ordinance Of 1787 And Strader V. Graham, Allan W. Vestal

Marquette Law Review

The Article looks at the first article of compact of the Northwest Ordinance,

the religious liberty guarantee: “No person . . . shall ever be molested on

account of his mode of worship or religious sentiments . . . .” Congress

provided that the Northwest Ordinance articles of compact would “forever

remain unalterable.” But in a fugitive slave case from 1851, Strader v. Graham,

Chief Justice Roger Taney declared the articles of compact to be no longer in

force.

In evaluating Chief Justice Taney’s reasoning, the question posed at the

dawn of the 20th Century by historian Professor Andrew McLaughlin …

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Law Faculty Articles and Essays

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex …

Justice Jackson In The Jehovah’S Witnesses’ Cases, John Q. Barrett

FIU Law Review

No abstract provided.

Trinity Lutheran And The Future Of Educational Choice: Implications For State Blaine Amendments, Richard D. Komer

Mitchell Hamline Law Review

No abstract provided.

Who's Causing The Harm?, Catherine A. Hardee

Faculty Scholarship

My parents started a software company out of our family room when I was just five years old As a child, the business felt like the sixth member of our family A fourth child who grew up alongside my sisters and me and whom my parents struggled with, stressed over, and strove to infuse with their values just as they did their flesh and blood children. Take pride in your work and stand behind what you do applied equally to homework and product launches. The Golden Rule to treat others as you would like to be treated meant that, long …

The Purpose (And Limits) Of The University, John D. Inazu

Scholarship@WashULaw

Scholars of the university have written volumes about contemporary challenges to higher education. Meanwhile, legal scholars writing about the university have typically focused on its First Amendment dimensions rather than on those challenges. This Article links insights from these two groups of scholars to clarify and defend the purpose of the public university against growing technological, ideological, and cultural pressures. It argues that a better understanding of the relationship between the First Amendment and the public university can help strengthen the coherence of the university’s purpose against growing technological, ideological, and cultural pressures. The connection between the First Amendment and …

Fighting The New Wars Of Religion: The Need For A Tolerant First Amendment, Leslie C. Griffin

Maine Law Review

Religious wars have broken out around the country about the legality of gay marriage, the consequences of gay ordination for property ownership, the funding of faith-based organizations and the placement of crosses and Ten Commandments (but not Seven Aphorisms) on public land. To resolve such impassioned disputes, Americans traditionally look to the Religion Clauses of the First Amendment, which state "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Unfortunately, the Court's modern decisions interpreting those clauses have shed more heat than light on the discussion and have provoked ongoing controversy instead of …

Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel

Law School Blogs

No abstract provided.

Master File, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen

Research Data

This Master File of the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and compiled by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The SB08-200 Master File is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).

449 p.

Rwu First Amendment Blog: Jared A. Goldstein's Blog: Ri's Conversion Therapy Ban Protects Lgbtq Youth And It's Constitutional 08-09-2017, Jared A. Goldstein

Law School Blogs

No abstract provided.

Burwell V. Hobby Lobby Stores, Inc.: Creating Power For Corporations At The Cost Of Changing Women’S Lives, Tara Zabehi

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Newsroom: Slate: Goldstein On Travel Ban 02-17-2017, Jared A. Goldstein

Life of the Law School (1993- )

No abstract provided.

Newsroom: Order Violates Roger Williams' Principles 01-30-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: Jared A. Goldstein's Blog: Trump's Order Violates Bedrock Principles Of Roger Williams And Ri 01-30-2017, Jared A. Goldstein

Law School Blogs

No abstract provided.

God And State Preambles, Peter J. Smith, Robert W. Tuttle

Marquette Law Review

Those who question the permissibility of official acknowledgements of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing n the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.

The preambles complicate the claim that official acknowledgements of God are incompatible with …

A Free Speech Tale Of Two County Clerk Refusals, Caroline Mala Corbin

Articles

The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them to speak in favor of same-sex marriage in violation of the Free Speech Clause.

When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking …

Government Employee Religion, Caroline Mala Corbin

Articles

Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses.

There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts …

Render Unto Caesar: How Misunderstanding A Century Of Free Exercise Jurisprudence Forged And Then Fractured The Rfra Coalition, John S. Blattner

CMC Senior Theses

This thesis provides a comprehensive history of Supreme Court Free Exercise Clause jurisprudence from 1879 until the present day. It describes how a jurisdictional approach to free exercise dominated the Court’s rulings from its first Free Exercise Clause case in 1879 until Sherbert v. Verner in 1963, and how Sherbert introduced an accommodationist precedent which was ineffectively, incompletely, and inconsistently defined by the Court. This thesis shows how proponents of accommodationism furthered a false narrative overstating the scope and consistency of Sherbert’s precedent following the Court’s repudiation of accommodationism and return to full jurisdictionalism with Employment Division v. Smith …