Religion Law Commons^™

The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler

Faculty Scholarship

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to …

Government Nonendorsement, Nelson Tebbe

Cornell Law Faculty Publications

What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …

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 …

The First Amendment: Religious Freedom For All, Including Muslims, Asma Uddin

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Limitations On Permissible State Aid To Church-Related Schools Under The Establishment Clause: Wolman V. Walter, Timothy J. Blied

Pepperdine Law Review

No abstract provided.

Defining The Lifeblood: The Search For A Sensible Ministerial Exception Test, Summer E. Allen

Pepperdine Law Review

Over the past 40 years, the circuit courts have acknowledged a ministerial exception to Title VII and other anti-discrimination laws that gives churches the freedom to determine who serves in ministerial roles as a voice of a church’s faith. In January of 2012, the Supreme Court officially adopted the exception into its jurisprudence. The opinion, however, left many questions unanswered. Mainly, the decision failed to give any guidance to lower courts regarding who is and who is not a minister. This article traces the history of the ministerial exception and the church autonomy doctrine back to the Religion Clauses in …

How Do You Solve A Problem Like Sharia? Awad V. Ziriax And The Question Of Sharia Law In America, Jeremy Grunert

Pepperdine Law Review

In the 2010 midterm elections, the citizens of Oklahoma passed a ballot initiative barring Oklahoma courts from considering the tenets of Islamic Sharia law in their judicial decisions. This initiative was passed in the midst of a nation-wide debate on the nature of Sharia law, in which numerous states began to take legislative steps to ban or limit the application of Sharia. Oklahoma’s law was the first to explicitly ban Sharia, and it was immediately challenged by a Muslim plaintiff for violating the Constitution’s Establishment and Free Exercise Clauses. This Article examines the resulting case, Awad v. Ziriax, and the …

Banning The Hijab In Prisons: Violations Of Incarcerated Muslim Women's Right To Free Exercise Of Religion, Ali Ammoura

Chicago-Kent Law Review

Muslim American women who wear the hijab, or Islamic headscarf, face religious discrimination in nearly every aspect of their public life. They even face it during arrest or incarceration. Law enforcement officials often force Muslim women to remove their hijab while in custody, which both degrades and humiliates them in the process. But prison policies that prohibit incarcerated Muslim women from wearing the hijab violate their right to free exercise of religion. Penal institutions should not prevent incarcerated Muslim women from wearing a hijab without compelling reasons, especially when such policies often arise out of religious discrimination. Courts must …

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 …

Piercing The Religious Veil Of The So-Called Cults , Joey Peter Moore

Pepperdine Law Review

No abstract provided.

Government Entanglement With Religion: What Degree Of Proof Is Required? , Lee Boothby

Pepperdine Law Review

No abstract provided.

"Religion" And "Religious Institutions" Under The First Amendment , Sharon L. Worthing

Pepperdine Law Review

No abstract provided.

The Government's Role In The "Purification" Of Religious Organizations, Robert L. Toms, Lisa A. Runquist

Pepperdine Law Review

No abstract provided.

Heffron V. International Society For Krishna Consciousness Inc.: A Restrictive Constitutional View Of The Proselytizing Rights Of Religious Organizations , Michael M. Greenburg

Pepperdine Law Review

The persistent efforts of religious organizations to reach their public have consistently been met with governmental limitation due to the often conflicting interests of public order, and free speech and expression. Heffron v. International Society for Krishna Consciousness, Inc. represents the Court's latest redefinition of the extent of permissible limitations upon the activities of these groups. The author examines the decision in light of the traditional criteria for permissible time, place, and manner restrictions upon free speech and evaluates the Court's implementation of these restrictions with respect to the activities of the Krishna group. The impact of the decision upon …

A New Standard Of Review In Free Exercise Cases: Thomas V. Review Board Of The Indiana Employment & Security Division, Lynn Mccutchen Gardner

Pepperdine Law Review

In Thomas v. Review Board of the Indiana Employment Security Division, the United States Supreme Court was called upon to clarify the appropriate level of review to be applied in cases which examine the first amendment right to free exercise of religion. The Court ruled that the "compelling state interest" test is the proper standard to be used. The Court also accorded first amendment protection to beliefs which are not shared by other members of a religious group and which are instead the unique interpretation of an individual member and not acceptable, logical, consistent or comprehensible to others.

The Constitutional Issues Surrounding The Science-Religion Conflict In Public Schools: The Anti-Evolution Controversy, Michael M. Greenburg

Pepperdine Law Review

Since the infamous Scopes trial the matter of the constitutional validity of the "anti-evolution" laws has plagued both legal scholars and school administrators. The courts have generally invalidated legislation which bans outright the teaching of evolution in public schools, but with the advent of the "balanced treatment" acts, a revival of this litigation has begun. The author examines the constitutional analysis utilized by the courts in dealing with the "anti-evolution" and "balanced treatment" acts and provides an historical perspective of the first amendment to question the Court's response to the issue.

Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney

Pepperdine Law Review

Justice Hugo L. Black served on the United States Supreme Court over a period of thirty-four years, encompassing Supreme Court terms from 1937 to 1971. During this period, the subject of the constitutional limitations of the freedom of religion was increasingly subjected to intense social pressures. Justice Black figured prominently in the development of constitutional law as the Supreme Court attempted to give meaning to the establishment and free exercise clause of the first amendment. He wrote the majority opinions which dealt with the establishment clause in the Everson, McCulloin, Engel and Torcaso cases. Yet, on later occasions, Justice Black …

Marsh V. Chambers: The Supreme Court Takes A New Look At The Establishment Clause, Diane L. Walker

Pepperdine Law Review

No abstract provided.

Some Observations On The Establishment Clause, William French Smith

Pepperdine Law Review

As evidenced by current interpretations of the establishment clause, lower federal court decisions indicate an increased tendency of hostility toward religion. In this article, Attorney General William French Smith surveys the history of the establishment clause and Supreme Court decisions regarding religious issues. Attorney General Smith then notes the recent success of the Reagan Administration's efforts, through amicus curiae briefs, to advocate an interpretation of the establishment clause which permits the states to take an attitude of benevolent neutrality toward religion. The article then concludes that such a position is both historically and judicially sound.

Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key …

Public Policy Against Religion: Doubting Thomas , Richard H. Seeburger

Pepperdine Law Review

In free exercise cases, the Supreme Court has adopted a least restrictive alternative test in an attempt to maximize protection for religiously motivated practices. Because the least restrictive alternative test only considers the importance of the governmental interest and the availability of alternative means to accomplish those interests, thereby ignoring the importance of the burdened religious activity to the individual and the degree of burden on religious activity, all religious interests are treated equally when asserted against a governmental interest. Under such an inflexible and brittle test, the Supreme Court has recently denied religious claims which had previously been recognized. …

Municipal And State Sanctuary Declarations: Innocuous Symbolism Or Improper Dictates?, Jorge L. Carro

Pepperdine Law Review

No abstract provided.

Avoiding Religious Apartheid: Affording Equal Treatment For Student-Initiated Religious Expression In Public Schools , John W. Whitehead

Pepperdine Law Review

No abstract provided.

Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman

Pepperdine Law Review

America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do …

Blame It On Catholic Bishop: The Question Of Nlrb Jurisdiction Over Religious Colleges And Universities, Susan J. Stabile

Pepperdine Law Review

No abstract provided.

The Endorsement Test Is Alive And Well: A Cause For Celebration And Sorrow, Mark Strasser

Pepperdine Law Review

No abstract provided.

The Priority Of Law: A Response To Michael Stokes Paulsen, Eugene Volokh

Pepperdine Law Review

No abstract provided.

Neutrality And The Good Of Religious Freedom: An Appreciative Response To Professor Koppelman, Richard W. Garnett

Pepperdine Law Review

This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom. Religious freedom, in the American tradition, is not …

The Priority Of God: A Theory Of Religious Liberty, Michael Stokes Paulsen

Pepperdine Law Review

Professor Paulsen argues that religious freedom only makes entire sense as a constitutional arrangement on the premise that God exists, that God makes actual demands on human loyalty and conduct, and that those demands precede and are superior in obligation to those of the State. Religious freedom exists to protect the exercise of plausibly true understandings of God's actual commands, as against state power, and to disable state power to proscribe -- or prescribe -- religious exercise. The article explores four possible stances of society toward religious freedom, depending on whether society and state embrace the idea of religious truth …

Can We Please Stop Talking About Neutrality? Koppelman Between Scalia And Rawls, Chad Flanders

Pepperdine Law Review

No abstract provided.