Religion Law Commons^™

The Tension Within The Religion Clause Of The First Amendment, Thomas B. Griffith

BYU Law Review

No abstract provided.

Secularity And Secularism In The United Kingdom: On The Way To The First Amendment, Iain Mclean, Scot M. Peterson

BYU Law Review

No abstract provided.

Smith In Theory And Practice, Nelson Tebbe

Cornell Law Faculty Publications

Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and …

Tango Or More - From California's Lesson 9 To The Constitutionality Of A Gay-Friendly Curriculum In Public Elementary Schools, Amy Lai

Michigan Journal of Gender & Law

In August 2009, a group of parents in California filed a lawsuit, Balde v. Alameda Unified School District, in the Superior Court of California, County of Alameda. They alleged that the Alameda Unified School District refused them the right to excuse their children from a new curriculum, Lesson 9, that would teach public elementary school children about gay, lesbian, bisexual and transgender (GLBT) families. The proposed curriculum included short sessions about GLBT people, incorporated into more general lessons about family and health, once a year from kindergarten through fifth grade. Kindergarteners would learn the harms of teasing, while fifth graders …

Is Modern Legal Liberalism Still Compatible With Free Exercise Of Religion?, Donald R. Mcconnell

Campbell Law Review

Classic liberal legal thought has clearly been shaped by the influence of Christianity. But in recent years, the movement, like ancient Gnosticism, has some Christian elements, but has become a decidedly anti-Christian force in the courts. This comparison tracks well with the analysis of other parallel modern intellectual movements by the political scientist Eric Voegelin. It is also supported by current events such as the recent Federal District Court opinion by Chief Judge Vaughn Walker in Perry v. Schwartzenegger. Liberalism has transformed from an attempt at neutrality, to an established religion that not only promotes its own perverse version of …

Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett

Faculty Publications

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

Between Liberalism And Theocracy, John D. Inazu

Campbell Law Review

Our symposium conveners have focused us on "the relationship between liberalism and Christianity and their influence on American constitutionalism."' My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for navigating the relationship between church and state.' By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), I hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are …

The Cross National Memorial: At The Intersection Of Speech And Religion, 61 Case W. Res. L. Rev. 1171 (2011), Mary Jean Dolan

UIC Law Open Access Faculty Scholarship

No abstract provided.

Secular Not Secularist America, Michael Scaperlanda

Campbell Law Review

Other contributors to this symposium see "liberalism"' as the problem and "God" as the solution.' To a large extent, Ithink they have it backwards. "God" is the problem to which "liberalism" provides a particularly creative solution. Power hates a rival,' and God - or allegiance to an all-embracing monotheistic God - poses a significant threat to power because the wild faith of the martyr cannot be tamed by civil authority.

"Causing The Blood To Flow Where I Touched Him" - Liberalism, Constitutionalism, Christianity, And The "War" At Covey Farm, Anthony V. Baker

Campbell Law Review

I will begin my critique by going directly to the source here, the famous Philadelphia Constitutional Convention of 1787, and ask us to look somewhat carefully at the work of the "founders" there, in considering the ultimate integrity of the product they fashioned and the world they "created." That they gave us a classical liberal wonder, with tenets of that philosophy writ large in government for the very first time, is undeniable, though it will be submitted that they gave us "something else" as well. It is right for us then to explore that "something else," not abstractly, through ideas, …

A Standard For Salvation: Evaluating “Hybrid-Rights” Free-Exercise Claims, William J. Haun

Catholic University Law Review

No abstract provided.

From Substance To Shadows: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

Articles

Most disputes about the Establishment Clause center on its substantive meaning; whether, for example, a state subsidy promotes religion, the phrase “In God We Trust” can appear on currency, or a display of the Ten Commandments is unconstitutional. Often overlooked and lurking behind these substantive disputes is a question about what remedies are available when an Establishment Clause violation is found. Typically, an injunction prohibiting the subsidy, practice, or display is the choice. In Salazar v. Buono, however, the Supreme Court was confronted with an unusual case for two reasons. First, the doctrine of res judicata formally barred the …

Religious And Political Virtues And Values In Congruence Or Conflict?: On Smith, Bob Jones University, And Christian Legal Society, Linda C. Mcclain

Faculty Scholarship

A basic tension in the U.S. constitutional and political order exists between two important ideas about the relationship between civil society and the state: (1) families, religious institutions, voluntary associations, and other groups are foundational sources, or “seedbeds,” of virtues and values that undergird constitutional democracy, and (2) these same institutions guard against governmental orthodoxy and overweening governmental power by generating their own distinctive virtues and values and by being independent locations of power and authority. The first idea envisions a comfortable congruence between civil society and government: the values and virtues - and habits and skills - cultivated in …

Expensive Speech: Citizens United V. Fec And The Free Speech Rights Of Tax-Exempt Religious Organizations, Brandon S. Boulter

BYU Law Review

No abstract provided.

Pick Your Poison: Private Speech, Government Speech, And The Special Problem Of Religious Displays, Ronnell Andersen Jones

BYU Law Review

No abstract provided.

Summum, The Vocality Of Public Places, And The Public Forum, Timothy Zick

BYU Law Review

No abstract provided.

Panel Discussion At "Signs Of The Times: The First Amendment And Religious Symbolism", Carl H. Esbeck

Faculty Publications

No abstract provided.

Passive Acknowledgement Or Active Promotion Of Religion? Neutrality And The Ten Commandments In Green V. Haskell, Stephanie Barclay

BYU Law Review

No abstract provided.

In Search Of (Maintaining) The Truth: The Use Of Copyright Law By Religious Organizations, David A. Simon

Michigan Telecommunications & Technology Law Review

The goal of this Article is to do what others have not: determine whether religious organizations should use copyright law to advance their goals of censorship and doctrinal purity. Answering this question entails a two-step analysis. First, the religious motivations must be compared with the underlying theories of, or justifications for, copyright law. Whether those principles align or conflict with religious motivations will inform our normative answer. Regardless of the answer to the aforementioned inquiry, the second step analyzes whether substantive copyright law doctrine facilitates or impedes the achievement of the ends advanced by these religious motivations. As a result …

In God We Trust: The Judicial Establishment Of American Civil Religion, 43 J. Marshall L. Rev. 869 (2010), James J. Knicely, John W. Whitehead

UIC Law Review

No abstract provided.

Government Identity Speech And Religion: Establishment Clause Limits After Summum, 19 Wm. & Mary Bill Rts. J. 1 (2010), Mary Jean Dolan

UIC Law Open Access Faculty Scholarship

This Article offers in-depth analysis of the opinions in Pleasant Grove v. Summum. Summum is a significant case because it expands "government speech" to cover broad, thematic government identity messages in the form of donated monuments, including the much-litigated Fraternal Order of Eagles-donated Ten Commandments. The Article explores the fine distinctions between the new "government speech doctrine"- a defense in Free Speech Clause cases that allows government to express its own viewpoint and to reject alternative views-and "government speech" analyzed under the Establishment Clause, which prohibits government from expressing a viewpoint on religion, and from favoring some religions over others. …

Fundamental Questions About The Religion Clauses: Reflections On Some Critiques, Kent Greenawalt

Faculty Scholarship

This essay responds to some major critiques of my work on the religion clauses. The effort has seemed worth undertaking because many issues the critics raise lie at the core of one’s approach to free exercise and nonestablishment, and some of those issues matter greatly for constitutional adjudication more broadly. Like any author, perhaps, my reaction to reading some comments has been that I did not quite say that, but I shall not bore you with these quibbles about how well I explained myself in the past. Rather, I shall try to confront the genuinely basic questions that many of …

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

Scholarly Works

No abstract provided.

When Is Religious Speech Outrageous?: Snyder V. Phelps And The Limits Of Religious Advocacy, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

The Constitution affords great protection to religiously motivated speech. Religious liberty would mean little if it did not mean the right to profess and practice as well as to believe. But are there limits beyond which religious speech loses its constitutional shield? Would it violate the First Amendment to subject a religious entity to tort liability if its religious profession causes emotional distress? When is religious speech outrageous?

These are vexing questions, to say the least; but the United States Supreme Court will take them up next term—and it will do so in a factual context that has generated as …

The Texas Mis-Step: Why The Largest Child Removal In Modern U.S. History Failed, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

This Article sets forth the historical and legal reasons as to how the State of Texas botched the removal of 439 children from the Fundamentalist Church of Jesus Christ of Latter-Day Saints parents residing in Eldorado, Texas. The Department of Family and Protective Services in Texas overreached its authority by treating this case like a class-action removal based on an impermissible legal argument, rather than focusing on the facts and circumstances that could have been substantiated for a select group of children at risk. This impermissible legal argument regarding the “pervasive belief system” of a polygamist sect that allowed minor …

Undoing Neutrality?: From Church-State Separation To Judeo-Christian Tolerance, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

In Celebration Of Steven Shiffrin's The Religious Left And Church-State Relations, Kent Greenawalt

Faculty Scholarship

Steven Shiffrin's The Religious Left and Church-State Relations is a truly remarkable book in many respects. I shall briefly note a few of its striking features, including some illustrative passages, and outline a number of its central themes, before tackling what for me is its most challenging and perplexing set of theses – the relations between constitutional and political discourse, and between religious liberals, on the one hand, and religious conservatives and secular liberals on the other.

We might well think of this as two books in one: a book about the constitutional law of free exercise and non-establishment, and …

Separating Church And State: Transfers Of Government Land As Cures For Establishment Clause Violations, Paul Forster

Chicago-Kent Law Review

The note examines one of the issues currently before the Supreme Court in Salazar v. Buono, the case concerning a Latin cross war memorial in the Mojave desert. The issue is whether the government may, by transferring land to private parties, cure Establishment Clause violations caused by permanent displays that contain religious imagery. The article surveys the Court's Establishment Clause jurisprudence as it applies to permanent displays, discussing the sometimes-used and sometimes-ignored Lemon-endorsement standard and the potential shift to a coercion standard. It concludes by arguing that even under the Lemon-endorsement standard, courts should often allow the …

Condemning Religion: Rluipa And The Politics Of Eminent Domain, Christopher Serkin, Nelson Tebbe

Cornell Law Faculty Publications

Should religious landowners enjoy special protection from eminent domain? A recent federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), compels courts to apply a compelling interest test to zoning and landmarking regulations that substantially burden religiously owned property. That provision has been controversial in itself, but today a new cutting-edge issue is emerging: whether the Act’s extraordinary protection should extend to condemnation as well. The matter has taken on added significance in the wake of Kelo, where the Supreme Court reaffirmed its expansive view of the eminent domain power. In this Article, we argue that RLUIPA should …

Understanding The Lobbying Efforts Of A Church: How Far Is Too Far?, Chase Manderino

BYU Law Review

No abstract provided.