First Amendment Commons^™

Justice Scalia, The Establishment Clause, And Christian Privilege, Caroline Mala Corbin

Articles

No abstract provided.

Newsroom: Rwu's News First Amendment Blog 12-07-2016, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Democratic First Amendment, Ashutosh Bhagwat

Northwestern University Law Review

Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The topic of this Article is the five …

Partly Accultured Religious Activity: A Case For Accommodating Religious Nonprofits, Thomas C. Berg

Notre Dame Law Review

This Article argues that we should make real efforts to protect religious freedom for partly acculturated religious activities and organizations. We should not reject their claims broadly or per se and thereby exclude them from the efforts at accommodation that other groups receive. The law should not force all religious organizations and activities into one of the two polar categories, acculturated or unacculturated. Part II of this Article presents several reasons why there is a strong interest in protecting the freedom to engage in partly acculturated religious activity.

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Ancient And Comely Order: The Use And Disuse Of Arbitration By New York Quakers, F. Peter Philips

Articles & Chapters

From the late 17th century, the Religious Society of Friends (“Quakers”) observed a method of resolving disputes arising within congregations that was scripturally based, and culminated in final and binding arbitration. The practice of Quaker arbitration gradually disappeared during the late 19th and early 20th centuries, and few modern Quakers are even aware of it. This article traces that decline and notes similarities with mercantile arbitration. In both religious and mercantile arbitration, a defined community valued the goal of avoiding group disruption more than the goal of vindicating individual legal rights. In both cases, members of the community applied distinct …

Half-Baked: The Demand By For-Profit Businesses For Religious Exemptions From Selling To Same-Sex Couples, James M. Donovan

Loyola of Los Angeles Law Review

Should bakers be required to make cakes for same-sex weddings? This Article unravels the eclectic arguments that are offered in support of a religious exemption from serving gay customers in the wake of Obergefell.

Preliminary issues first consider invocations of a libertarian right to exclude. Rather than being part of our concept of liberty, this right to exclude from commercial premises is a new rule devised to prevent African Americans from participating in free society. Instead of expanding this racist rule to likewise bar gays from the marketplace, it should be reset to the antebellum standard of free access …

The Influence Of Setting On Supreme Court Religious Expression Decisions, Joseph J. Hemmer Jr.

Communication and Theater Association of Minnesota Journal

The First Amendment prohibits any establishment of religion, a dicta that has been applied in an apparently inconsistent manner by the Supreme Court when called upon to evaluate various forms of verbal and nonverbal religious communication. Court decisions have approved religious prayers and displays in government settings. When such exercises and displays were introduced to the public school academic setting, the Court chose to disallow the practice. An examination of judicial opinions reveals that justices recognize three factors inherent to the academic setting which justify the apparently contradictory decisions. Because of the captive nature of the audience, the presence of …

Law, Religion, And Politics: Understanding The Separation Of Church And State, Richard Garnett

Faculty Workshops

Professor Richard Garnett, of University of Notre Dame Law School, presented on the topic Law, Religion, and Politics: Understanding the Separation of Church and State. This workshop was presented as part of the Hesburgh Lecture Series through the Alumni & Friends of University of Notre Dame and was co-sponsored by the Notre Dame Alumni Club of Miami. This workshop examined how to understand the Constitution's "separation of church and state" and what it requires of religious believers and institutions.

The First Amendment Case For Corporate Religious Rights, John D. Moore

Nevada Law Journal

No abstract provided.

Kirsch V. Wisconsin Department Of Corrections: Will The Supreme Court Say "Hands Off" Again?, Owen J. Rarric

Akron Law Review

This Note examines the struggle of prison inmates to gain access to religious materials; materials that have been forbidden by prison officials. Part II of the Note will examine the historical development of inmates’ constitutional rights. It will also analyze the Supreme Court’s standard for reviewing prison regulations involving inmates’ constitutional rights. Moreover, the Note discusses Congress’ attempt to set the standard of review. The Note then examines the significance of the Kirsch decision. Finally, the Note analyzes the fourth factor of the Turner Standard used in Kirsch and explores the possible effect of a new legislative act on prisoners’ …

The Original Meaning Of "God": Using The Language Of The Framing Generation To Create A Coherent Establishment Clause Jurisprudence, Michael I. Meyerson

Marquette Law Review

The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.

A careful reading of the history of the framing …

George Washington. Elena Kagan, And The Town Of Greece, New York: The First Amendment And Religious Minorities, Kermit V. Lipez

The Journal of Appellate Practice and Process

No abstract provided.

Rethinking The “Religious-Question” Doctrine, Christopher C. Lund

Pepperdine Law Review

The “religious question” doctrine is a well-known and commonly accepted notion about the First Amendment’s Religion Clauses. The general idea is that, in our system of separated church and state, courts do not decide religious questions. And from this premise, many things flow — including the idea that courts must dismiss otherwise justiciable controversies when they would require courts to resolve religious questions. Yet a vexing thought arises. The religious-question doctrine traditionally comes out of a notion that secular courts cannot resolve metaphysical or theological issues. But when one looks at the cases that courts have been dismissing pursuant to …

Doe V. Elmbrook School District And The Importance Of Refocusing Establishment Clause Jurisprudence, Julie M. Karaba

Northwestern University Law Review

No abstract provided.

Commentary: Exploiting Mixed Speech, Caroline Mala Corbin

Articles

The Supreme Court has been taking advantage of mixed speech—that is, speech that is both private and governmental—to characterize challenged speech in a way that ultimately permits the government to sponsor Christian speech. In Pleasant Grove City v. Summum, a free speech case where the government accepted a Christian Ten Commandments monument but rejected a Summum Seven Aphorisms monument, the Court held that privately donated monuments displayed in public parks were government speech as opposed to private speech and therefore not subject to free speech limits on viewpoint discrimination. In Town of Greece v. Galloway, an establishment case …

A Confident Pluralism, John D. Inazu

Scholarship@WashULaw

The ongoing tension between religious liberty and gay rights is a striking example of our country’s profound and deep differences. But we are also divided over many other issues: immigration, criminal justice, abortion, contraception, poverty, and education, to name a few. Each of these differences pulls at the threads of a purported unity in pursuit of a “common good.” In light of our contemporary situation, this Article argues that we can and must live with deep and irresolvable differences in our beliefs, values, identities, and groups through a “confident pluralism.” A confident pluralism embraces a “right to differ” from state …

The Legal Definition Of Religion: From Eating Cat Food To White Supremacy, Jane M. Ritter

Touro Law Review

No abstract provided.

Religion As A Legal Proxy, Micah Schwartzman

San Diego Law Review

In what follows, after briefly summarizing Koppelman’s position, I argue that his view is vulnerable to the charge that using religion as a legal proxy is unfair to those with comparable, but otherwise secular, ethical and moral convictions. Koppelman has, of course, anticipated this objection, but his responses are either ambivalent or insufficient to overcome it. The case for adopting religion as a proxy turns partly on arguments against other potential candidates. In particular, Koppelman rejects the freedom of conscience as a possible substitute. But even if he is right that its coverage is not fully extensive with the category …

How Much Autonomy Do You Want?, Maimon Schwarzschild

San Diego Law Review

At root, the questions of special accommodation and religious adjudicatory independence arise most urgently when a government grows in its reach and ambition. After all, if most areas of life, including those that touch on religious life, are left to people’s private arrangement, then not much special accommodation will be necessary. But when government takes control over more and more areas of life, regulating who shall do what and under what rules and conditions, then clashes with one or another religious way of life are almost inevitable. The dispute over government mandates to provide abortive drugs and contraception, in the …

Why Distinguish Religion, Legally Speaking?, Winnifred Fallers Sullivan

San Diego Law Review

Law professors commonly answer this critique by scholars of religion, as Andrew Koppelman does, with the comment that, after all, any ambiguity in definition only arises in a few cases. Most of the time the reference is obvious, he says. Moreover, he insists, it has worked fine for all those for whom it should work. But that is the problem—its very obviousness. The problems of exclusion are largely invisible. The reference is so obvious to many and so obviously inclusive of those who are deserving that there is no way to have a conversation about it without the conversation devolving …

Press Definition And The Religion Analogy, Ronnell Andersen Jones

Faculty Scholarship

n a Harvard Law Review Forum response to Professor Sonja West's symposium article, "Press Exceptionalism," Professor RonNell Andersen Jones critiques Professor West's effort to define "the press" for purposes of Press Clause exceptions and addresses the weaknesses of Professor West's analogy to Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC in drawing these definitional lines. The response highlights distinctions between Press Clause and Religion Clause jurisprudence and urges a more functional approach to press definition.

Supreme Court, Kings County, Wilson V. Kilkenny, James Dougherty

Touro Law Review

No abstract provided.

Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Curtailing The First Amendment Protection To Discovery, Silvia Durri

Touro Law Review

No abstract provided.

Once We Were Slaves, Now We Are Free: Legal, Administrative, And Social Issues Raised By Passover Celebrations In Prison, Aviva Orenstein

Pepperdine Law Review

“Once we were slaves, now we are free” is a central line from the Jewish Passover Seder, a ritual meal in which participants retell the story of liberation from Pharaoh’s oppression. In prison, many Jewish inmates request access to a Seder and to kosher-for-Passover food for the eight-day holiday. Prisoners’ requests to celebrate Passover provide a rich example for exploring the Religious Land Use and Institutional Persons Act (RLUIPA), and raise a host of tough questions regarding cost, safety, equal treatment of prisoners, and establishment of religion. Because kosher-for-Passover meals are more expensive and generally of higher quality than regular …

Institutional Autonomy And Constitutional Structure, Randy J. Kozel

Journal Articles

This Review makes two claims. The first is that Paul Horwitz’s excellent book, "First Amendment Institutions," depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's argument — and, …

More Is More: Strengthening Free Exercise, Speech, And Association, John D. Inazu

Scholarship@WashULaw

Prominent scholars have suggested that one important means of strengthening the First Amendment is by limiting its protections to “core” interests. Philip Hamburger has asserted the argument most forcefully. His generalized worry is that expanding the coverage of First Amendment rights can shift absolute protection of a defined core to contingent “balancing” for all claims asserted under those rights. In Hamburger’s words, “more is less.” We can think of cautions like these as arguments for rights confinement. On this view, legal doctrine will be most resilient to cultural pressures when it is construed narrowly. But the interplay between doctrine and …

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 …

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 …