Religion Law Commons^™

Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley

Journal Articles

From all the talk about our religious pluralism—how extensive, indelible, inarbitrable it is—one would expect that establishing one definition of religious liberty would be the mother of all civic disturbances. Wrong. We have a common definition of religious liberty. I can demonstrate our agreement with one exhibit: the immensely broad based denunciation of the 1990 Supreme Court decision, Employment Division v. Smith. Two counsellors at a drug rehabilitation center (Alfred Smith and Galen Black) appealed Oregon’s denial of unemployment benefits. Oregon cited the “misconduct” that led to their discharges. Their “misconduct” consisted of using the hallucinogenic drug peyote. Peyote …

Structural Free Exercise, Mary Ann Glendon, Raul F. Yanes

Michigan Law Review

In Part I of this article, we analyze the development of case law interpreting the religious freedom language of the First Amendment from the 1940s to the eve of the rights revolution as a casualty of the piecemeal approach to incorporation, compounded by a series of judicial lapses and oversights. Part II deals with the fate of the Religion Clause in the era of the rights revolution, when the free exercise and establishment provisions were deployed in the service of a constitutional agenda to which they were, in themselves, largely peripheral. The current period of doctrinal change is the subject …

Michigan's Teacher Certification Requirement As Applied To Religiously Motivated Home Schools, Donald D. Dorman

University of Michigan Journal of Law Reform

This Note defends the thesis that the teacher-certification requirement of Michigan's compulsory attendance statute is unconstitutional as applied to people who, for sincere religious reasons, believe they must teach their children at home. Michigan courts have incorrectly applied a rational-basis test in regulating religiously motivated home schools, rather than the strict scrutiny required by the U.S. Supreme Court for cases involving both the free exercise of religion and parents' interest in directing their children's education.

Churches And The Free Exercise Of Religion, John H. Garvey

Scholarly Articles

The first amendment says that "Congress shall make no law . . . prohibiting the free exercise" of religion. This rule is most often used to protect individuals (religious speakers, pacifists, people claiming public benefits). This is hardly surprising. We naturally think that free exercise is an individual right, as we think that religion is a personal and private affair. I want to dispute (more modestly, to qualify) that view. I will argue that we should (sometimes) see the freedom of religion as a group right, which can conflict with, and take precedence over, individual rights.

The Lemon Test: Should It Be Retained, Reformulated Or Rejected?, Carl H. Esbeck

Faculty Publications

This essay addresses the Supreme Court's three-part establishment clause test originally set down in Lemon v. Kurtzman. Part I concerns the manner in which the Lemon test has substantially evolved. Part II explores what the evolved test has to offer by way of solving the seemingly conflicting duties not to inhibit free speech and political rights, while at the same time refraining from passing laws "respecting an establishment of religion." Finally, Part III addresses some of the proposals to supplant Lemon altogether.

Original Intent, History And Levy’S Establishment Clause. Book Review Of The Establishment Clause: Religion And The First Amendment, By Leonard W. Levy, Ruti Teitel

Articles & Chapters

No abstract provided.

Constitutional Law—Freedom Of Religion—Requiring Reports Of Religious Counseling Sessions Under Child Abuse Reporting Statutes Does Not Violate The First Amendment. State V. Motherwell, 114 Wash. 2d 353, 788 P.2d 1066 (1990)., Mona J. Mcnutt

University of Arkansas at Little Rock Law Review

No abstract provided.

First Freedom: Religion And The Bill Of Rights, Carl H. Esbeck

Faculty Publications

This volume is a collection of seven papers delivered at a symposium assembled in April 1989 upon the occasion, almost two hundred years hence, of the passage of the Bill of Rights by the First Congress. The unifying theme is stated to be the historical context of both Religion Clauses in the First Amendment, but the authors are driven primarily by Establishment Clause concerns. The Thrust of the essays deal with the originalism advanced during the years of Reagan Administration, and nonpreferentialism comes in for particular criticism, both pejoratively characterized as that "growing clamor".

Is This The End Of American Indian Site Specific Free Exercise Claims?: Lyng V. Northwest Indian Cemetery Protection Association, Joseph Tomkiewicz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Book Review Of Religion And The State: Essays In Honor Of Leo Pfeffer, By James E. Wood, Jr., Ruti G. Teitel

Other Publications

No abstract provided.

Free Exercise In The Free State: Maryland's Role In Religious Liberty And The First Amendment, Kenneth Lasson

All Faculty Scholarship

Maryland arguably holds the distinction of being the state whose early history most directly ensured, and whose citizenry was most directly affected by, the First Amendment's protection of religious freedom. Because of its relatively diverse religious population, Maryland stood out as both a champion of tolerance and a hotbed of discrimination for most of its colonial experience. Similarities have been pointed out between the first provincial government in St. Mary's, Maryland, and the American plan under the Constitution, particularly with respect to religious liberty.

This article offers a brief overview of the religious history of Maryland, focuses on important state …

"Discrimination" On The Basis Of Religion: An Examination Of Attempted Value Neutrality In Employment, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Freedom Of Speech, Press And Assembly, And Freedom Of Religion Under The Illinois Constitution, 21 Loy. U. Chi. L.J. 91 (1989), Michael P. Seng

UIC Law Open Access Faculty Scholarship

No abstract provided.

The U.S. Constitution And Religious Freedom, Gerard V. Bradley

Journal Articles

From the Article

"I shall develop two basic points in this article, composing a fuller diagnosis of that illness. The first describes the contemporary regime and its architects, the Justices of our Supreme Court. That regime and the Court are not dedicated to spiritual liberty. Its earmark is the "naked public square," one from which religious discourse has been evicted. The second contention simply describes how this represents a complete betrayal of our constitutional tradition."

Toward A Universal Standard: Free Exercise And The Sanctuary Movement, Troy Harris

University of Michigan Journal of Law Reform

This Note will first look at the combination of circumstances and beliefs that compel members of the Sanctuary Movement to break the law. Second, it will examine current free exercise doctrine that may provide first amendment protection to Sanctuary workers, concluding that the cases reflect two parallel, yet incompatible, rationales. Following one line of cases, Sanctuary activity should be protected; following the other line, it should be condemned. Third, this Note will resolve the inconsistency of these rationales by proposing a new universal test for free exercise claims. Fourth, it will explore the details of recent cases involving Sanctuary workers …

Public Prayer And The Constitution, Ethan M. Posner

Michigan Law Review

A Review of Public Prayer and the Constitution by Rodney K. Smith

Kendrick V. Bowen: "Primary Effect" Analysis And The Adolescent Family Life Act, Gregory M. Hess

BYU Law Review

No abstract provided.

Some Thoughts On The Historical Origins Of The United States Constitution And The Establishment Clause, 21 J. Marshall L. Rev. 239 (1988), Marvin E. Aspen

UIC Law Review

No abstract provided.

Edwards V. Aguillard: The Lemon Test Yields Bitter Fruit For Traditional Religious Values, 21 J. Marshall L. Rev. 613 (1988), John R. Russell

UIC Law Review

No abstract provided.

Science In School: From Antireligion To Scientific Cult, 21 J. Marshall L. Rev. 449 (1988), Elizabeth Freidheim

UIC Law Review

No abstract provided.

Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins

Faculty Publications

No abstract provided.

Symbols, Perceptions, And Doctrinal Illusions: Establishment Neutrality And The "No Endorsement" Test, Steven D. Smith

Michigan Law Review

Section I of this article briefly describes the emergence and development of the "no endorsement" test. Section II then seeks to show that the test is deficient as doctrine, and thus incapable of providing the clarity and coherence that current doctrine so sorely lacks. Section III considers various likely theoretical justifications for the "no endorsement" proposal, including the justification advanced by Justice O'Connor, and concludes that these justifications, like the test itself, are seriously flawed. This conclusion provokes a question: If the "no endorsement" test is doctrinally deficient and without theoretical justification, why has it elicited such widespread enthusiasm? Section …

What Is “An Establishment Of Religion?", William W. Van Alstyne

Faculty Publications

No abstract provided.

Book Review. Church-State Relationships In America By Gerald V. Bradley, Richard M. Fraher

Articles by Maurer Faculty

No abstract provided.

The Integration Of Spiritual And Temporal, Leslie C. Griffin

Scholarly Works

No abstract provided.

Standing In The Need Of Prayer? The Supreme Court On James Madison And Religious Liberty, Jonathan Van Patten

Faculty Publications

No abstract provided.

En El Nombre De Dios--The Sanctuary Movement: Development And Potential For First Amendment Protection, Carl W. Levander

West Virginia Law Review

No abstract provided.

Tort Claims Against Churches And Ecclesiastical Officers: The First Amendment Considerations, Carl H. Esbeck

West Virginia Law Review

No abstract provided.

Intentional Infliction Of Emotional Distress By Spiritual Counselors: Can Outrageous Conduct Be "Free Exercise"?, Lee W. Brooks

Michigan Law Review

Part I explains the extent to which courts are competent to decide the threshold question of whether particular conduct is religious. Part II describes the balancing test put forward by the Supreme Court for evaluating free exercise claims, and derives criteria relevant to spiritual counseling from cases involving such claims. Part III summarizes the pertinent criteria and reviews the ways they may be employed to systematize the treatment of spiritual counseling cases.

Religion And The Burger Court, Rex E. Lee

Michigan Law Review

A Review of Religion, State and the Burger Court by Leo Pfeffer