Religion Law Commons^™

Incidental Burdens On First Amendment Freedoms, Charles F. Capps

Notre Dame Law Review Reflection

The Supreme Court is currently reconsidering the question when, if ever, the Free Exercise Clause requires exemptions to neutral laws of general applicability. This Essay proposes an answer that is based on the idea—which this Essay labels the “Principle of Consistency”—that the First Amendment requires comparable levels of protection for speech and religious exercise. Other scholars applying the Principle of Consistency have discussed the implications of United States v. O’Brien, which prescribed intermediate scrutiny for incidental burdens on speech, for the problem of exemptions under the Free Exercise Clause. But no one has discussed the implications of two lines …

Sex Offenders And The Free Exercise Of Religion, Christopher C. Lund

Notre Dame Law Review

In a variety of ways, sex offenders in the United States find themselves in a difficult position. One of the lesser-known ways relates to the free exercise of religion. Sometimes by categorical statute, and sometimes by individualized parole, probation, or supervised-release condition, sex offenders can find themselves legally barred from places where children are present (or likely to be present). Because children are usually present at religious services, sex offenders can find themselves unable to attend them altogether. And this hardship has a bit of irony in it too. Back in prison, sex offenders could worship freely with others; now …

What Is Caesar's, What Is God's: Fundamental Public Policy For Churches, Lloyd Histoshi Mayer, Zachary B. Pohlman

Journal Articles

Bob Jones University v. United States is both a highly debated Supreme Court decision and a rarely applied one. Its recognition of a contrary to fundamental public policy doctrine that could cause an otherwise tax-exempt organization to lose its favorable federal tax status remains highly controversial, although the Court has shown no inclination to revisit the case and Congress has shown no desire to change the underlying statutes to alter the case’s result. That lack of action may be in part because the IRS applies the decision in relatively rare and narrow circumstances.
/="/">
/="/">The mention of the decision …

Rethinking Protections For Indigenous Sacred Sites, Stephanie H. Barclay, Michalyn Steele

Journal Articles

Meaningful access to sacred sites is among the most important principles to the religious exercise of Indigenous peoples, yet tribes have been repeatedly thwarted by the federal government in their efforts to vindicate this practice of their religion. The colonial, state, and federal governments of this Nation have been desecrating and destroying Native American sacred sites since before the Republic was formed. Unfortunately, the callous destruction of Indigenous sacred sites is not just a troubling relic of the past. Rather, the threat to sacred sites and cultural resources continues today in the form of spoliation from development, as well as …

Forgotten Federal-Missionary Partnerships: New Light On The Establishment Clause, Nathan S. Chapman

Notre Dame Law Review

Americans have long debated whether the Establishment Clause permits the government to support education that includes religious instruction. Current doctrine permits states to do so by providing vouchers for private schools on a religiously neutral basis. Unlike most Establishment Clause doctrines, however, the Supreme Court did not build this one on a historical foundation. Rather, in cases from Everson v. Board of Education (1947) to Espinoza v. Montana Department of Revenue (2020), opponents of religious-school funding have claimed American history supports a strict rule of no-aid.

Yet the Court and scholars have largely ignored a practice that casts light on …

The Historical Origins Of Judicial Religious Exemptions, Stephanie H. Barclay

Notre Dame Law Review

The Supreme Court has recently expressed a renewed interest in the question of when the Free Exercise Clause requires exemptions from generally applicable laws. While scholars have vigorously debated what the historical evidence has to say about this question, the conventional wisdom holds that judicially created exemptions would have been a new or extraordinary means of protecting religious exercise—a sea change in the American approach to judicial review when compared to the English common law.

This Article, however, questions that assumption and looks at this question from a broader perspective. When one views judicial decisions through the lens of equitable …

Fruit Of The Poisonous Lemon Tree: How The Supreme Court Created Offended-Observer Standing, And Why It's Time For It To Go, Joseph C. Davis, Nicholas R. Reaves

Notre Dame Law Review Reflection

Can individuals who observe what they consider to be offensive government speech or conduct sue to stop it? Typically not—absent additional evidence of a direct and particularized injury. Yet in one area of the law, the fundamental requirements of Article III (limiting federal standing to actual “cases” or “controversies”) are relaxed: the Establishment Clause. At least ten circuits have held that the mere observation of a display containing religious content (the Ten Commandments, a cross, a menorah, and the like) on public property suffices to create an injury-in-fact that opens the doors to federal court.

This Essay addresses the continued …

"Of Substantial Religious Importance": A Case For A Deferential Approach To The Ministerial Exception, Allison H. Pope

Notre Dame Law Review

This Note argues that, in order to remain consistent with the Religion Clauses’ protection of religious autonomy, civil courts must defer to the religious group’s determination of which of its employees play a role “of substantial religious importance” within the organization in carrying out its religious mission under its tenets, and are therefore “ministers,” rather than investigate and make that determination themselves. Part I provides background information on the First Amendment and an overview of the circuit court and Supreme Court decisions that laid the foundation for, built, adopted, and applied the ministerial exception as described in Hosanna-Tabor. Part …

A Different Kind Of Prisoner's Dilemma: The Right To The Free Exercise Of Religion For Incarcerated Persons, Daniel T. Judge

Notre Dame Law Review

Part I will lay the foundation for the constitutional right to freedom of religion in the United States. It will explain how the Framers understood the right in the lead up to, and at the time of, the ratification of the Free Exercise Clause as part of the Bill of Rights. Part I will also address more modern advances in religious liberty protections for prisoners before discussing two recent milestones: the Religious Land Use and Institutionalized Persons Act and the Supreme Court’s decision in Holt v. Hobbs. Part II addresses the right to freedom of religion internationally. It begins …

An Economic Approach To Religious Exemptions, Stephanie H. Barclay

Journal Articles

Externalities caused by religious exemptions have been getting the spotlight again in light a case the U.S. Supreme Court will hear this term: Fulton v. City of Philadelphia. Some argue that religious individuals should be required to internalize the costs they impose on third parties and thus should be denied the right to practice that harmful behavior. These new progressive theories about harm trade on rhetoric and normative intuitions regarding externalities and costs. But curiously, these theories also largely ignore an influential theoretical movement that has studied externalities and costs for the last fifty years: law and economics.

This Article …

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …

The Future Of State Blaine Amendments In Light Of Trinity Lutheran: Strengthening The Nondiscrimination Argument, Margo A. Borders

Notre Dame Law Review

In Part I, this Note will examine a brief history of the proposed federal Blaine Amendment, and the subsequent adoption of many State Blaines across the nation. Next, in Part II, the Note will discuss why the State Blaines are frequently debated, specifically in the context of the issue of school choice. The Note will then examine two of the main arguments against the constitutionality of State Blaines—the animus arguments and the First Amendment arguments—and will examine the strengths and weaknesses of each argument. In Part III, the Note will discuss the culmination of recent caselaw in the Trinity Lutheran …

How Would The European Court Of Human Rights Decide Holt V. Hobbs?, Francesca M. Genova

Notre Dame Law Review Reflection

This Essay inquires: How would the ECtHR decide Holt v. Hobbs, given the same evidence provided at the district court level and the reasoning of the court of appeals? Analyzing this case through the ECtHR’s lens will elucidate the implications of the proportionality test in American jurisprudence. To do so, Part I will compare the two jurisdictions. Part II will summarize Holt v. Hobbs. Part III will describe the ECtHR’s relevant recent free exercise jurisprudence. Part IV will discuss how, based on this analysis, the ECtHR could decide Holt v. Hobbs in light of its overarching principles. Finally, …

Islam And Religious Freedom: The Experience Of Religious Majorities And Minorities, Brett G. Scharffs

Notre Dame Law Review Reflection

It seems likely that change in Islam will be affected both by outside and internal sources, as was the case for the Catholic Church and its journey to Dignitatis Humanae. However, one thing the Catholic experience suggests is that meaningful and profound change does not simply come from outside pressures; it comes from authentic and sincere evaluation and interpretation by insiders of a religious tradition of that tradition itself. Thus, if Islam is going to come to embrace religious freedom as an important value, this will be the result, significantly if not primarily, of Muslims interpreting their own sacred …

Employment Division V. Smith And State Free Exercise Protections: Should State Courts Feel Obligated To Apply The Federal Standard In Adjudicating Alleged Violations Of Their State Free Exercise Clauses?, Matthew Linnabary

Notre Dame Law Review Reflection

State courts should feel free to apply whatever test is most appropriate based on the textual provisions of their state constitution that protects the free exercise or worship of its citizens. Of course, such freedom to the state courts is greatly limited in many states by the passage of their own Religious Freedom Restoration Acts. These acts generally set forth precisely how the courts must determine whether or not a law violates the free exercise or worship of a claimant. Even if not limited by a RFRA—which would generally require strict scrutiny—a state court should apply strict scrutiny to violations …

There Is A Place For Muslims In America: On Different Understandings Of Neutrality, Mark A. Goldfelder

Notre Dame Law Review Reflection

American neutrality is not about the government making sure religion is not visible or even treated benevolently. The American concept of neutrality just means that the government should not treat religion as special, for better or for worse, simply because it is religion. For example, the Supreme Court has repeatedly held that laws touching religion must have a valid secular purpose, and not serve primarily to advance or inhibit religion. But that does not mean that religion should not be respected. The key to the American conception of religious neutrality lies in the understanding that religion is valuable—despite what strict …

The Vatican View On Sport At The Service Of Humanity, Ed Edmonds

Notre Dame Journal of International & Comparative Law

Participation in sport, particularly the opportunity for children to enjoy and learn through play, is a human right and strongly supported by the goals of Catholic social teaching and the efforts of the Olympic Movement and the United Nations. On October 5-6, 2016, the Vatican held the Sport at the Service of Humanity Conference, the first global conference on sport and faith, an initiative promoted by Pope Francis and supported by the International Olympic Committee and the United Nations. This essay focuses on the conference, its vision and goals, and a challenge to use sport to advance human development and …

Irreconcilable Differences? Whole Woman’S Health, Gonzales, And Justice Kennedy’S Vision Of American Abortion Jurisprudence, O. Carter Snead, Laura Wolk

Journal Articles

A law is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."' Twenty-five years have elapsed since a plurality of the Supreme Court articulated this undue burden standard in Planned Parenthood of Southeastern Pennsylvania v. Casey, yet its contours remain elusive. Notably, two current members of the Court-Justice Breyer and Justice Kennedy-seem to fundamentally differ in their understanding of what Casey requires and permits. In Gonzales v. Carhart, Justice Kennedy emphasized a wide range of permissible state interests implicated by abortion and indicated …

The Vatican View On Sport At The Service Of Humanity, Ed Edmonds

Journal Articles

Participation in sport, particularly the opportunity for children to enjoy and learn through play, is a human right and strongly supported by the goals of Catholic social teaching and the efforts of the Olympic Movement and the United Nations. On October 5-6, 2016, the Vatican held the Sport at the Service of Humanity Conference, the first global conference on sport and faith, an initiative promoted by Pope Francis and supported by the International Olympic Committee and the United Nations. This essay focuses on the conference, its vision and goals, and a challenge to use sport to advance human development and …

There Are No Ordinary People: Christian Humanism And Christian Legal Thought, Richard W. Garnett

Journal Articles

This short essay is a contribution to a volume celebrating a new casebook, "Christian Legal Thought: Materials and Cases", edited by Profs. Patrick McKinley Brennan and William S. Brewbaker.

Analysis Of Statutory Religious Accomodations For State-Employed Religious Objectors To Same-Sex Marriage Solemnization, Nicholas J. Schilling Jr.

Notre Dame Journal of Law, Ethics & Public Policy

The Supreme Court’s landmark decision in Obergefell v. Hodges legalized same-sex marriage. The decision aggravated a tension between advocates of protection of religious beliefs that reject as wrong same-sex marriage and sponsors of the new legal norm of same-sex marriage as a fundamental right.

Prior to—and in response to—the Supreme Court’s decision in Obergefell, at least ten state legislatures debated bills that would provide exemptions for state officials who, on religious grounds, objected to the certification of marriage licenses for same-sex couples. Unless otherwise established by state law, officials who swear an oath to protect and defend the Constitution must …

Wait, Who Are We Talking About Here? Searching For A Consistent Approach To Applying Rfra To Corporations, Steven J. Harrison

Notre Dame Journal of Law, Ethics & Public Policy

There is perhaps no idea in contemporary American law that is more publicly contentious than that of “corporate personhood.” Of all of the Supreme Court cases dealing with corporations and the corporate entity, few probably thought that a decision could surpass Citizens United in public controversy and divisiveness produced by the decision, which brought the legal fiction of the “corporate person” to the forefront of popular debate and discussion. Then came Burwell v. Hobby Lobby Stores, Inc., which not only addressed whether corporations could “act” in a manner that seemed only a possibility for “real” or “natural” persons, which recalled …

The Equivalence Of Religion And Conscience, Lucien J. Dhooge

Notre Dame Journal of Law, Ethics & Public Policy

This Article examines issues posed by the equation of religious liberty with secular conscience, utilizing federal law and the law in those states which have adopted religious freedom restoration acts (RFRAs). The Article initially addresses the definition of religion through an examination of applicable literature and federal and state case law. The same approach is utilized to define conscience. The Article then examines similarities between the two concepts and the implications of their equivalence. The Article concludes that religion and conscience are moral equivalents that require equal legal treatment. However, equal treatment should proceed with caution in order to address …

Religious Freedom And Recycled Tires: The Meaning And Implications Of Trinity Lutheran, Richard W. Garnett, Jackson C. Blais

Journal Articles

The Supreme Court's decision in Trinity Lutheran clearly affirmed a First Amendment rule against anti-religious discrimination. At the same time, it raised or left open a number of important and interesting questions about education reform, the relevance of anti-Catholic bias to states' so-called Blaine Amendments, and the sharpening tension between religious freedom and the application of antidiscrimination laws.

Adoption And Foster Care Placement Policies: Legislatively Promoting The Best Interest Of Children Amidst Competing Interests Of Religious Freedom And Equal Protection For Same-Sex Couples, Samantha R. Lyew

Journal of Legislation

No abstract provided.

Religion And Child Custody, Margaret F. Brinig

Journal Articles

This piece draws upon divorce pleadings and other records to show how indications of religion (or disaffiliation) that appear in custody agreements and orders (called “parenting plans” in both states studied) affect the course of the proceedings and legal activities over the five years following divorce filing. Some of the apparent findings are normative, but most are merely descriptive and some may be correlative rather than caused by the indicated concern about religion. While parenting plans are accepted by courts only when they are in the best interests of the child (at least in theory), the child’s independent religious needs …

Religion And Social Coherentism, Nelson Tebbe

Notre Dame Law Review

Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares …

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Notre Dame Law Review Reflection

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach to religious doctrine. Specifically, this Part presents a summary of problems posed by the hands-off approach, followed by a brief taxonomy of different forms of judicial inquiry into religion. This Part aims to clarify which forms of inquiry are permissible—and typically necessary—for adjudication of a case involving a religious claim, and which forms of inquiry are precluded under the hands-off doctrine. Part II of this Essay applies the hands-off framework to the Hobby Lobby decision, considering the taxonomy of forms of judicial inquiry into …

Religious Accommodations And – And Among – Civil Rights: Separation, Toleration, And Accommodation, Richard W. Garnett

Journal Articles

This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in …

Quasi-Rights For Quasi-Religious Organizations: A New Framework Resolving The Religious-Secular Dichotomy After Burwell V. Hobby Lobby, Krista M. Pikus

Notre Dame Law Review Reflection

This Comment aims to break free of the limiting religious-secular dichotomy by proposing a “quasi-religious” classification in order to achieve a more nuanced assignment of corporate religious exercise rights. Part I addresses the current legal standard for classifying organizations as religious and how the Hobby Lobby decision engaged that standard. Part II identifies and discusses the problems with the religious-secular dichotomy. Lastly, Part III proposes a new solution to the problem of corporate religious exercise rights that transcends the limitations of the religious-secular dichotomy and may also bring clarity to the Hobby Lobby decision.