Religion Law Commons^™

Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen

Publications

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II's hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.

Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Cornell Law Faculty Publications

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much …

Davey And The Limits Of Equality, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard W. Garnett

Journal Articles

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …

The First Free Exercise Case, Walter J. Walsh

Articles

Part I of this Article tells the colonial history of religious freedom in New York State from a minority perspective, with specific reference to the secrecy of the confessional-the very practice that would be constitutionally tested in Philips. Part II describes the immediate social and political issues raised by the influx of Irish Catholic refugees into New York City in the wake of the failed United Irish Rebellion of 1798. Part III treats the unfriendly 1811 ruling of the federalist Chief Justice James Kent in People v. Ruggles as representative of the dominant Anglocentric constitutional legacy of imperial Protestant …

A Defining Faith: "True" Religion And The Establishment Clause, Jeffrey Shulman

ExpressO

This essay examines two trends in modern church-state law. Parts I and II review the history of the Supreme Court's Establishment Clause cases. It is a history that can best be understood as a series of jurisprudential maneuvers by which the Court has sought to make room for religion in civic life. The accommodations made by the Court to religious belief and conduct have, in effect, allowed for discrimination against non-religion, and have edged the court toward a nonpreferentialist perspective on disestablishment. But the Court’s accommodating attitude amounts to more than a preference for the many varieties of religious experience. …

Secularism's Laws: State Blaine Amendments And Religious Persecution, Kyle Duncan

ExpressO

The State Blaine Amendments are provisions in thirty-seven state constitutions that restrict persons’ and organizations’ access to public benefits on religious grounds. They arose largely in the mid- to late-1800s in response to bitter strife between an established Protestant majority and a growing Catholic minority that sought equal access to public funding for Catholic schools. After the failure to pass a federal constitutional amendment—the "Blaine Amendment"—that would have sealed off public school funds from "sectarian" institutions, similar provisions proliferated in state constitutions. These "State Blaines" have often been interpreted, under their plain terms, as erecting religion-sensitive barriers to the flow …

Patient Autonomy Versus Religious Freedom: Should State Legislatures Require Catholic Hospitals To Provide Emergency Contraception To Rape Victims?, Heather Rae Skeeles

Washington and Lee Law Review

No abstract provided.

The Serpentine Wall Of Separation, John Witte Jr.

Michigan Law Review

The task of separating the secular from the religious in education is one of magnitude, intricacy, and delicacy, Justice Jackson wrote, concurring in McCollum v. Board of Education, the Supreme Court's first religion in public schools case. "To lay down a sweeping constitutional doctrine" of absolute separation of church and state "is to decree a uniform . . . unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes." If we persist in this experiment, Justice Jackson warned his brethren, "we are …

A Matter Of Constitutional Luck: The General Applicability Requirement In Free Exercise Jurisprudence, Christopher C. Lund

Law Faculty Research Publications

No abstract provided.

Public Funding For Theological Training Under The Free Exercise Clause: Pragmatic Implications And Theoretical Questions Posed To The Supreme Court In Locke V. Davey, Katie Axtell

Seattle University Law Review

Part II of this Note presents the factual background and procedural history of Davey v. Locke. Part III discusses the Free Exercise Clause of the First Amendment. Section A provides a basic background on the Supreme Court's free exercise jurisprudence. Section B applies the Court's precedent to Davey, and concludes that the Ninth Circuit sidestepped a true "prohibition" analysis. Sections A, B, and C of Part IV discuss the differing neutrality examinations within free exercise, free speech, and establishment jurisprudence, respectively. Section D discusses the overlapping application of neutrality criteria in establishment and free speech funding cases. Section E concludes …

The "Blaine" Debate: Must States Fund Religious Schools?, Laura S. Underkuffler

Cornell Law Faculty Publications

In Zelman v. Simmons-Harris, the United States Supreme Court held-by a vote of 5 to 4-that the funding of religious schools with taxpayer money through voucher programs does not violate the Establishment Clause of the United States Constitution. Emboldened by this success, voucher proponents now attack state constitutional provisions (often called "Blaine Amendments") that prohibit taxpayer funding of religious schools. These state provisions, which may stand in the way of religious-school voucher programs, are attacked as violative of the federal Constitution, rooted in anti-religious bias, or otherwise illegal or unwise.

It is my view that efforts to force states …

Liberalism And The Establishment Clause, Steven H. Shiffrin

Cornell Law Faculty Publications

Every political theory tolerates some things and not others. Every political theory promotes a particular kind of person even if it denies it is doing so. But the best liberalism does not confine itself to promoting a Rawlsian-tolerant citizen. Liberalism, like conservatism, has greater ambitions in the socialization of the young. The best liberalism, a neo-Millian liberalism, promotes a creative, independent, autonomous, engaged citizen and human being who works with others to make for a better society and speaks out against unjust customs, habits, institutions, traditions, hierarchies, and authorities.

Although government may promote a particular conception of the good life, …

Sacred Sites And Religious Freedom On Government Land, Richard B. Collins

Publications

No abstract provided.

Wagering On Religious Liberty, Nathan B. Oman

Faculty Publications

No abstract provided.

Establishing Religious Ideas: Evolution, Creationism, And Intelligent Design, Kent Greenawalt

Faculty Scholarship

In this article, I first sketch the basic conflict between evolutionary theory and creationism and describe the opposition of creationists to the teaching of standard evolutionary theory. I then state the basic educational and constitutional questions

about evolution, standard creationism, and "intelligent design." After exploring of five fundamental premises that, in combination, generate the most troubling questions about science, religion, and the public schools, I turn to claims of miracles. Like assertions that God has intervened in natural processes of development, these claims suppose that God transcends or violates scientific principles; their investigation suggests that scientific principles; their investigation suggests …

Government Hostility To Religion: How Misconstruction Of The Establishment Clause Stifles Religious Freedom, Andrew R. Cogar

West Virginia Law Review

No abstract provided.

Of Orphans And Vouchers: Nevada's "Little Blaine Amendment" And The Future Of Religious Participation In Public Programs, Jay S. Bybee, David W. Newton

Nevada Law Journal

No abstract provided.

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 …

Disestablishmentarianism Collides With The First Amendment: The Ghost Of Thomas Jefferson Still Haunts Churches, Mathew D. Staver, Anita L. Staver

Faculty Publications and Presentations

This history of church-state relations in the Commonwealth of Virginia date back to Thomas Jefferson and James Madison. Efforts by Jefferson and others to disestablish the state church may be likened to an army conquering a foreign enemy. The state established church was viewed as a remnant of the British government. Disestablishment was considered to be part of the ongoing Revolution. As this article will show, the methods of disestablishment included prohibiting the incorporation of churches, confiscating property, and limiting the amount of real and personal property that churches may own.

Mohammed And Madison: A Comparison Of The Qur'an And The U.S. Constitution, Joshua White

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Religious Land Use Jurisprudence: The Negative Ramifications For Religious Activities In Washington After Open Door Baptist Church V. Clark County, Beth Prieve

Seattle University Law Review

Part II of this Note provides a history of religious land use jurisprudence in Washington. This part addresses growth management laws generally, and where these laws cross paths with constitutional guarantees of the free exercise of religion. Part III focuses on the Washington Supreme Court's Open Door decision, separately addressing both the majority opinion and the dissent. Part IV illustrates how the Washington Supreme Court misapplied Washington's religious freedom test in Open Door and significantly shifted religious land use jurisprudence. Part IV further discusses how this shift may include Washington's adoption of the lower federal standard and elaborates upon the …

Reason To Ratify: The Influence Of John Locke's Religious Beliefs On The Creation And Adoption Of The United States Constitution, David L. Wardle

Seattle University Law Review

The pervasive influence of Lockean religious convictions motivated the framers of the Constitution to establish a new form of government, provided the theoretical basis for the document itself, and inspired its popular ratification. Part II will lay the groundwork for this thesis by outlining Locke's life and sources of his religious beliefs. Part III will undertake a more substantive examination of Locke's opinions and the writings that memorialized them. Establishing how Lockean ideas of natural law, social contract, and reason are related to the inspiration, drafting, and acceptance of the Constitution takes place in Part IV, before the article's conclusion …

Book Review, Mark C. Modak-Truran

Journal Articles

Eric Michael Mazur’s dissertation (supervised by Phillip E. Hammond) argues that minority religious communities have had to “subordinate their distinct theological beliefs to the transcending principles of the majority articulated by the constitutional order, or they are forced to do so by the physical powers of the government” (p. xxv). To support this argument, he takes an empirical approach and focuses on the Jehovah’s Witnesses, the Church of Jesus Christ of Latter-Day Saints (the Mormons), and Native American religious traditions.

Jefferson And Madison As Icons In Judicial History: A Study Of Religion Clause Jurisprudence, David J. Reiss

Cornell Law Faculty Publications

No abstract provided.

The Distinctive Place Of Religious Entities In Our Constitutional Order, Ira C. Lupu, Robert Tuttle

Villanova Law Review (1956 - )

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 …

The Story Of A Forgotten Battle, Nathan B. Oman

Faculty Publications

No abstract provided.

A Political History Of The Establishment Clause, John C. Jeffries Jr., James E. Ryan

Michigan Law Review

Now pending before the Supreme Court is the most important church-state issue of our time: whether publicly funded vouchers may be used at private, religious schools without violating the Establishment Clause. The last time the Court considered school aid, it overruled precedent and upheld a government program providing computers and other instructional materials to parochial schools. In a plurality opinion defending that result, Justice Thomas dismissed as irrelevant the fact that some aid recipients were "pervasively sectarian." That label, said Thomas, had a "shameful pedigree." He traced it to the Blaine Amendment, proposed in 1875, which would have altered the …

A Measure Of Freedom, James W. Nickel

Articles

No abstract provided.