Religion Law Commons^™

Thou Shalt Not?, Mark Strasser

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Living By The Sword: The Free Exercise Of Religion And The Sikh Struggle For The Right To Carry A Kirpan, Rishi S. Bagga

The Modern American

No abstract provided.

Context Is King: A Perception-Based Test For Evaluating Government Displays Of The Ten Commandments, Nathan P. Heller

Villanova Law Review (1956 - )

No abstract provided.

Christian Faith And Political Life: A Dialogue, Randy Beck

Georgia Law Review

The proper relationship of the Christian to the community's political and legal institutions has been a recurring issue since the earliest days of the church and the earliest days of our nation. The relevance of Christian faith to political participation again became a topic of conversation in this country following the 2004 presidential election. Since that election, Americans have engaged in much discussion regarding the role of religion in our nation's politics. Not all of this discussion has been productive. In the dialogue that follows, Jason Carter and Randy Beck discuss the political implications of Christian faith and prospects for …

A Reply To Professor Beck, Jason Carter

Georgia Law Review

The 2004 election reinvigorated the debate about Christianity's role in our nation's lawmaking. The election saw increased polarization between the secular left, and the politicized Christian right.' Evangelical Protestants voted overwhelmingly for the Republican candidate, George W. Bush, while the most secular voters voted overwhelmingly for John Kerry.2 The 2004 election emboldened the Christian right. In addition to what they believed was their crucial role in President Bush's victory, the Christian right celebrated the passage of constitutional amendments banning gay marriage in all eleven states where such amendments were on the ballot.? One leader of the Christian right stated that …

Toward A Genuine Debate About Morals, Religion, Politics, And Law: Why America Needs A Christian Response To The "Christian" Right, Jason Carter

Georgia Law Review

America's current debate about religion's role in politics offers a false choice. On one side is the politicized Christian right.' This group, loosely defined, consists of those political groups and leaders who associate themselves with traditional conservative ideas on culture and claim to represent fundamentalist or evangelical Christians. This group has been by far the most vocal advocate of the position that religion deserves an increased role in our nation's policy making. Indeed, it has come to dominate that position. The response to the Christian right has come almost exclusively from the secular left. It argues not with the Christian …

The Interests Of "Peoples" In The Cooperative Management Of Sacred Sites, Kristen A. Carpenter

Publications

This essay contends that there is a structural element of federal law and policy that sets up legal battles over American Indian sacred sites. The Supreme Court has held that whatever rights groups may have at sacred sites, the federal government's rights as owner and sovereign of the public lands ultimately prevails. Federal agencies can, if they choose, accommodate various interests on the public lands, but such decisions are left to fluctuating executive policy and the discretion of land managers. This approach reflects well-established doctrine in public lands law, but leaves various citizens and groups clamoring for the federal government …

The City Of God And The Cities Of Men: A Response To Jason Carter, Randy Beck

Georgia Law Review

Jason initially considers and rejects philosophical positions that call for citizens to put aside their religious beliefs when they participate in the political sphere.' He advocates, instead, the freedom to live a "religiously integrated existence" in all areas of life, including political life. Here, Jason reminds me of another Carter-Professor Stephen L. Carter of the Yale Law School. In The Culture of Disbelief, Professor Carter contends that "[in our sensible zeal to keep religion from dominating our politics, we have created a political and legal culture that presses the religiously faithful to be other than themselves, to act publicly, and …

Recoiling From Religion, Marc O. Degirolami

Faculty Publications

This is an essay reviewing Professor Marci A. Hamilton's book, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (Cambridge Univ. Press 2005).

Professor Marci Hamilton has written a forceful and obviously heartfelt book that should give pause to committed champions of religious free exercise. She argues convincingly that religious freedom is too often invoked to shield opprobrious and socially harmful activity, and she describes numerous examples of such abuses that make any civilized person's blood run cold. Her avowed aims are to debunk the “hazardous myth” that religion is “inherently and always good for society” and to increase …

Religious Liberty And The Law, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Introduction: Religion, Division, And The Constitution, Richard W. Garnett

Journal Articles

Thirty-five years ago, in his landmark Lemon v. Kurtzman opinion, Chief Justice Warren Burger declared that state actions could "excessive[ly]"—and, therefore, unconstitutionally—"entangle" government and religion, not only by requiring or allowing intrusive monitoring by officials of religious institutions and activities, but also through their "divisive political potential." He worried that government actions burdened with this "potential" pose a "threat to the normal political process and "divert attention from the myriad issues and problems that confront every level of government." And, he insisted that "political division along religious lines was one of the principal evils against which the First Amendment was …

Old Ground And New Directions At Sacred Sites On The Western Landscape, Kristen A. Carpenter

Publications

The federal public lands contain places with both religious and secular value for American people. American Indians, in particular, hold certain natural features to be sacred, and visit them for ceremonies and worship. Simultaneously, non-Indians use the same places for economic, recreation, and many other purposes - and conflicts arise between these groups. In the past twenty years, a body of constitutional jurisprudence has developed to address questions of religious freedoms and public access rights on these lands that are owned and managed by the federal government. This article outlines the relevant First Amendment framework as well as recent statutes …

The Future Of The Lemon Test: A Sweeter Alternative For Establishment Clause Analysis, Marcia S. Alembik

Georgia Law Review

For over three decades the Supreme Court has applied the three-pronged Lemon test to determine whether state actions violate the Establishment Clause. While the Lemon test remains the most widely accepted test for Establishment Clause analysis,the recent Supreme Court decisions of Van Orden v. Perry and McCreary County v. ACLU of Kentucky have highlighted the Court's ongoing unrest with its application. Although attempts at total replacement of the test have thus far proved unsuccessful, modifications and alternatives to the test and its individual prongs are continually introduced and applied. The Court's lack of a consistent, definite test for Establishment Clause …

Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill

Michigan Law Review

The treatment of Establishment Clause challenges to displays of religious symbolism by the Supreme Court and the lower courts is notoriously unpredictable: a crèche is constitutionally acceptable if it is accompanied by a Santa Claus house and reindeer, a Christmas tree, and various circus figures, but unacceptable if it is accompanied by poinsettias, a "peace tree," or a wreath, a tree, and a plastic Santa Claus. A menorah may be displayed next to a Christmas tree, or next to Kwanzaa symbols, Santa Claus, and Frosty the Snowman, but not next to a crèche and a Christmas tree. A number of …

Incitement In The Mosques: Testing The Limits Of Free Speech And Religious Liberty, Kenneth Lasson

All Faculty Scholarship

In times of terror and tension, civil liberties are at their greatest peril. Nowadays, no individual rights are more in jeopardy than the freedoms of speech and religion. This is true particularly for followers of Islam, whose leaders have become increasingly radical in both their preaching and practice. "Kill the Jews!" and "Kill the Americans!" are chants heard regularly in many Middle Eastern mosques, as frightful echoes of the fatwa are issued by today's quintessential terrorist, Osama bin Laden. The incitement continues unabated to this day. In April of 2004, for example, a Muslim preacher at the Al-Aqsa Mosque in …

Roger Williams On Liberty Of Conscience, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Incarceration Of The Free Exercise Clause: The Sixth Circuit's Misstep In Cutter V. Wilkinson, James B. Mcmullin

Brigham Young University Journal of Public Law

No abstract provided.

Free Exercise And The Problem Of Symmetry, Nelson Tebbe

Cornell Law Faculty Publications

This Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a liberty component, shows how it would generate more attractive results than neutrality alone, and defends the liberty approach against likely objections.

A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Under that rule, only laws and policies that have the purpose of discriminating against religion draw heightened scrutiny. All others are presumptively constitutional, regardless of how severely they burden religious practices.

Critics have attacked the …

The Demise Of The First Amendment As A Guarantor Of Religious Freedom, Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

Dui Treatment Programs And Religious Freedom: Does Cutter V. Wilkinson Change The Analysis?, Morris Jenkins, Brandene Moore, Eric Lambert, Alan Clarke

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Nonestablishment Under God - The Nonsectarian Principle, Steven D. Smith

Villanova Law Review (1956 - )

No abstract provided.

“The Indispensable Basis Of Democracy”: American Catholicism, The Church-State Debate, And The Soul Of American Liberalism, 1920–1929, Zachary R. Calo

Scholarly Works

Several recent works of scholarship explore how Establishment Clause jurisprudence has been shaped by broader political debates over the role of religion in public life. This literature focuses on the politics of anti-Catholicism, particularly during the early years of Establishment Clause jurisprudence in the1940s and 1950s. While not questioning the centrality of this period to the historical narrative, this Note argues that the political contest over church and state took shape in an earlier debate over the compatibility of Catholicism and the Constitution during the 1920s. The Church’s response to the anti-Catholicism of this period was of particular importance. Catholic …

Changing Minds: Proselytism, Freedom, And The First Amendment, Richard W. Garnett

Journal Articles

Proselytism is, as Paul Griffiths has observed, a topic enjoying renewed attention in recent years. What's more, the practice, aims, and effects of proselytism are increasingly framed not merely in terms of piety and zeal; they are seen as matters of geopolitical, cultural, and national-security significance as well. Indeed, it is fair to say that one of today's more pressing challenges is the conceptual and practical tangle of religious liberty, free expression, cultural integrity, and political stability. This essay is an effort to unravel that tangle by drawing on the religious-freedom-related work and teaching of the late Pope John Paul …

Is There A "Religious Question" Doctrine?: Judicial Authority To Examine Religious Practices And Beliefs, Jared Goldstein

Law Faculty Scholarship

No abstract provided.

The Permissible Scope Of Legal Limitations On The Freedom Of Religion Or Belief In The United States, Frederick Mark Gedicks

Faculty Scholarship

This article summarizes the law of legal limitations on religious freedom in the UnitedStates, including sources and hierarchies of applicable law, structural limitations on religious freedom, grounds for limiting such freedom, an analytical description oflimitations, and background influences on limitations law, and applies this law to hypothetical situations.

Federal judicial decisions interpreting the Religion Clauses are the principal source oflimitations law in the United States. RLUIPA and RFRA, federal anti-discrimination statutes, and executive orders are other important sources of religious freedom law. State constitutions, statutes, and regulations are important sources law when federal sources are absent or inapplicable. International human …

Considering Individual Religious Freedoms Under Tribal Constitutional Law, Kristen A. Carpenter

Publications

As American Indian nations revitalize their legal systems, there is renewed interest in "tribal law," that is, the law of each of the Indian nations. Today, there is a particular focus on the subject of "individual rights" under tribal law. In tribal contexts, people are highly interested in the legal institutions and rules that govern their lives, especially as many tribal communities are experiencing a period of great political, social, and economic change. At the national level, the Supreme Court repeatedly expresses concern about whether individuals, especially non-Indians, will be treated fairly in tribal court. For scholars, individual rights under …

Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen A. Brady

BYU Law Review

No abstract provided.

"Omalous" Autonomy, Perry Dane

BYU Law Review

No abstract provided.

Thoughts On Smith And Religious-Group Autonomy, Laura S. Underkuffler

BYU Law Review

No abstract provided.

Continuing The Lord's Work And Healing His People: A Reply To Professors Lupu And Tuttle, Mark E. Chopko

BYU Law Review

No abstract provided.