Religion Law Commons^™

From Yoder To Yoda: Traditional, Modern And Postmodern Models Of Religion In U.S. Constitutional Law, Rebecca Redwood French

Journal Articles

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Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld

Michigan Law Review

To get right to the point: Mr. Hacker does not disagree that the Establishment Clause would, in the absence of the Fourteenth Amendment, have prohibited Congress from passing a nationwide religion law like RFRA. He believes, however, that the Fourteenth Amendment has in part repealed the First. Of course, he doesn't want to say repealed. The language of repeal is not pleasant to the ears of those who would like to forget about First Amendment antidisestablishmentarianism. The Fourteenth Amendment did not "repeal any aspect of the text of the [Establishment] Clause," Hacker says, but only "change[d] profoundly the meaning of …

A Response To Professor Rubenfeld, Jonathan D. Hacker

Michigan Law Review

Professor Jed Rubenfeld has offered in these pages an ingenious explanation for why the Supreme Court was right to strike down the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores. Rubenfeld finds in the First Amendment's Establishment Clause a historical and inherent principle he calls "antidisestablishmentarianism": a prohibition on acts of Congress that "disestablish" religion in the several states. Rubenfeld reads the Establishment Clause as proscribing not only congressional acts that "establish" religion but also all congressional acts that "dictate a position on religion for states," including laws designed to ensure that states abide by the requirements …

Religion-Centered Free Exercise: A Tribute To Justice Brennan, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On April 22, 1998, Professor of Law, Stephen L. Carter of Yale Law School, delivered the Georgetown Law Center’s eighteenth Annual Philip A. Hart Memorial Lecture: "Religion-Centered Free Exercise: A Tribute to Justice Brennan."

Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America’s Wars in the Age of Obama (2011). Among his other books on law and politics are God’s Name in Vain: The …

Constitutional Law—First Amendment And Establishment Clause—The Wall Of Separation Crumbles. Agostini V. Felton, 117 S. Ct. 1997 (1997)., Missy Mcjunkins

University of Arkansas at Little Rock Law Review

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Establishment Of Religion, Court Of Appeals: Park Slope Jewish Center V. Congregation B'Nai Jacob

Touro Law Review

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Establishment Of Religion, Supreme Court, Appellate Division, First Department: Robbins V. Bright

Touro Law Review

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Establishment Of Religion, Court Of Appeals: Grumet V. Cuomo

Touro Law Review

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The Legality Of The Religious Use Of Peyote By The Native American Church: A Commentary On The Free Exercise, Equal Protection, And Establishment Issues Raised By The Peyote Way Church Of God Case, John Thomas Bannon Jr.

American Indian Law Review

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Talking About Religion In The Language Of The Law: Impossible But Necessary, James Boyd White

Articles

In speaking to this conference about religion and law I am in a decidedly peculiar position, for it may be that every one of you has thought longer and harder about the relation between these two forms of life than I have. When Scott Idleman first asked me to talk to you, I explained that I was no expert, to put it mildly, and that the most that I could offer would be the reflections of a neophyte. He said that this was fine-perhaps he was just desperate for a speaker; perhaps he thought that it might be helpful to …

The Status Of Constitutional Religious Liberty At The End Of The Millennium, Kurt T. Lash

Law Faculty Publications

I have the privilege of introducing the 1998 Bums Lecture Symposium- Religious Liberty in the Next Millennium: Should We Amend the Religion Clauses of the United States Constitution? My role in this Symposium is to acquaint you with the religion clauses of the Constitution- where they came from- where they've been- and where they seem to be today. Our Symposium contributors, Professors Kent Greenawalt and Robert George will discuss just where they think the religion clauses should go in the future.

Antidisestablishmentarianism: Why Rfra Really Was Unconstitutional, Jed Rubenfeld

Michigan Law Review

Two months ago, the Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), handing down its most important church-state decision, and one of its most important federalism decisions, in fifty years. Through RFRA, Congress had prohibited any state actor from "substantially burden[ing] a person's exercise of religion" unless imposing that burden was the "least restrictive means" of furthering "a compelling governmental interest." RFRA was a response to Employment Division, Department of Human Resources of Oregon v. Smith, in which the Supreme Court abandoned the very same compelling interest test that RFRA mandated. Smith, overturning decades-old precedent, held …

Restoring Rights To Rites: The Religious Motivation Test And The Religious Freedom Restoration Act, Steven C. Seeger

Michigan Law Review

This Note argues that the religious motivation test best secures the religious liberty guaranteed by the Constitution and the RFRA. Part I examines the text and legislative history of the Act and establishes that Congress intended to protect religiously motivated practices. Part II argues that the free exercise case law prior to Smith, to which the RFRA explicitly appeals, did not require litigants to prove centrality or compulsion. Part III demonstrates that the religious motivation test protects the full spectrum of religious practices and religious groups, unlike the centrality test and the compulsion test. Part IV illustrates that the motivation …

The Architecture Of The Establishment Clause, John H. Garvey

Scholarly Articles

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"The Liberal Agenda": Biblical Values And The First Amendment, Burton Caine

Touro Law Review

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The Real Reason For Religious Freedom, John H. Garvey

Scholarly Articles

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Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Carl H. Esbeck

Faculty Publications

It is often said that America's founding was an experiment in government. Certainly few features of the American constitutional settlement left more to future chance--and were more of a break with existing European patterns--than the Establishment Clause set out in the First Amendment. The new Republic sought to rely on transcendent principles to justify its unpre-cedented advancements in human liberty. Concurrently, the Founders reject ed any official or fixed formulation of these principles, for no public credo was to be established by law. So it is more than just a little ironic that the nation's most cherished human rights depend …

Good Catholics Should Be Rawlsian Liberals, Leslie C. Griffin

Scholarly Works

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Of Pandas, People, And The First Amendment: The Constitutionality Of Teaching Intelligent Design In The Public Schools, Jay D. Wexler

Faculty Scholarship

Despite the Supreme Court's 1987 decision in Edwards v. Aguillard, striking down Arkansas' statute requiring equal time for the teaching of creationism and evolution, the debate over whether some form of creationism should be taught in public schools has recently enjoyed a resurgence. In this note, Jay Wexler applies the Supreme Court's Establishment Clause to a new variant of creationism that posits the existence of an intelligent designer as an alternative to evolution. Wexler argues that teaching intelligent design theory in the public schools violates the Establishment Clause. After explaining that the Supreme Court has always applied the Establishment Clause …

Civilizing Religion, Kurt T. Lash

Law Faculty Publications

Is it appropriate to restrict abortion at any stage in pregnancy on the ground that human life is sacred? Should the public square be open to biblical arguments against homosexuality? Or, to frame the issue in a more scholarly fashion: What role may religious arguments play, if any, either in public debate about what political choices to make or as the private basis of a political choice? In his recent book, Religion in Politics: Constitutional and Moral Perspectives, Michael Perry addresses these questions as a matter of constitutional law and political morality. Perry has been down this road before, most …

The Improbability Of Religion Clause Theory, Frederick Mark Gedicks

Faculty Scholarship

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Church And State Relations In Australia And The United States: The Purpose And Effect Approaches And The Neutrality Principle, Gabriel A. Moens

BYU Law Review

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"Brainwashing" Claims And Minority Religions Outside The United States: Cultural Diffusion Of A Questionable Concept In The Legal Arena, James T. Richardson

BYU Law Review

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All Things Being Equal ..., John H. Garvey

BYU Law Review

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The Necessity And Impact Of The Proposed Religious Equality Amendment, Steuen T. Mcfarland

BYU Law Review

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Converting The Religious Equality Amendment Into A Statute With A Little "Conscience", Rodney K. Smith

BYU Law Review

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Is There A Principle Of Religious Liberty?, John H. Garvey

Michigan Law Review

A Review of Jesse H. Choper, Securing Religious Liberty: Priniples for Judicial Interpretation of the Religion Clauses and Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom

Religious Accommodation And The National Labor Relations Act, Roberto L. Corrada

Sturm College of Law: Faculty Scholarship

This Article argues for amending the National Labor Relations Act ("NLRA") to require employers and unions to accommodate a broader array of employee and third party religious beliefs. By detailing the experiences of several religious adherents, the Article seeks to demonstrate that current statutory and constitutional doctrines fail to adequately protect religious freedom.

After identifying numerous conflicts between the NLRA and religious exercises, the Article explains why a legislative accommodation for religion is appropriate given the long-standing history in United States labor law of accommodating various secular interests (e.g. federalism and free speech) that may conflict with optimal labor policy. …

God, Money, And Schools: Voucher Programs Impugn The Separation Of Church And State, 30 J. Marshall L. Rev. 1 (1996), Harlan A. Loeb, Debbie N. Kaminer

UIC Law Review

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Religious Liberty And Fair Housing: Must A Landlord Rent Against His Conscience, 29 J. Marshall L. Rev. 455 (1996), James C. Geoly, Kevin R. Gustafson

UIC Law Review

No abstract provided.