Religion Law Commons^™

Supreme Court, Kings County, Wilson V. Kilkenny, James Dougherty

Touro Law Review

No abstract provided.

Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Once We Were Slaves, Now We Are Free: Legal, Administrative, And Social Issues Raised By Passover Celebrations In Prison, Aviva Orenstein

Pepperdine Law Review

“Once we were slaves, now we are free” is a central line from the Jewish Passover Seder, a ritual meal in which participants retell the story of liberation from Pharaoh’s oppression. In prison, many Jewish inmates request access to a Seder and to kosher-for-Passover food for the eight-day holiday. Prisoners’ requests to celebrate Passover provide a rich example for exploring the Religious Land Use and Institutional Persons Act (RLUIPA), and raise a host of tough questions regarding cost, safety, equal treatment of prisoners, and establishment of religion. Because kosher-for-Passover meals are more expensive and generally of higher quality than regular …

Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett

Journal Articles

This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is an …

The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler

Faculty Scholarship

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to …

Some Thoughts On The First Amendment's Religion Clauses And Abner Greene's Against Obligation, With Reference To Patton Oswalt's Character 'Paul From Staten Island' In The Film Big Fan, Jay D. Wexler

Faculty Scholarship

In this short contribution to a symposium held at Boston University in the fall of 2012, I review Abner Greene's recent book Against Obligation by considering whether Greene's broad theory of freedom from state obligations under the Free Exercise Clause of the First Amendment would protect the maniacal New York Giants fan "Paul from Staten Island," portrayed by the ridiculously talented Patton Oswalt in Robert Siegel's hilarious film "Big Fan." I also explain how I use the film in my Law and Religion class to teach the Free Exercise Clause and the deeply perplexing question of how the word "religion" …

Banning The Hijab In Prisons: Violations Of Incarcerated Muslim Women's Right To Free Exercise Of Religion, Ali Ammoura

Chicago-Kent Law Review

Muslim American women who wear the hijab, or Islamic headscarf, face religious discrimination in nearly every aspect of their public life. They even face it during arrest or incarceration. Law enforcement officials often force Muslim women to remove their hijab while in custody, which both degrades and humiliates them in the process. But prison policies that prohibit incarcerated Muslim women from wearing the hijab violate their right to free exercise of religion. Penal institutions should not prevent incarcerated Muslim women from wearing a hijab without compelling reasons, especially when such policies often arise out of religious discrimination. Courts must …

Heffron V. International Society For Krishna Consciousness Inc.: A Restrictive Constitutional View Of The Proselytizing Rights Of Religious Organizations , Michael M. Greenburg

Pepperdine Law Review

The persistent efforts of religious organizations to reach their public have consistently been met with governmental limitation due to the often conflicting interests of public order, and free speech and expression. Heffron v. International Society for Krishna Consciousness, Inc. represents the Court's latest redefinition of the extent of permissible limitations upon the activities of these groups. The author examines the decision in light of the traditional criteria for permissible time, place, and manner restrictions upon free speech and evaluates the Court's implementation of these restrictions with respect to the activities of the Krishna group. The impact of the decision upon …

A New Standard Of Review In Free Exercise Cases: Thomas V. Review Board Of The Indiana Employment & Security Division, Lynn Mccutchen Gardner

Pepperdine Law Review

In Thomas v. Review Board of the Indiana Employment Security Division, the United States Supreme Court was called upon to clarify the appropriate level of review to be applied in cases which examine the first amendment right to free exercise of religion. The Court ruled that the "compelling state interest" test is the proper standard to be used. The Court also accorded first amendment protection to beliefs which are not shared by other members of a religious group and which are instead the unique interpretation of an individual member and not acceptable, logical, consistent or comprehensible to others.

The Constitutional Issues Surrounding The Science-Religion Conflict In Public Schools: The Anti-Evolution Controversy, Michael M. Greenburg

Pepperdine Law Review

Since the infamous Scopes trial the matter of the constitutional validity of the "anti-evolution" laws has plagued both legal scholars and school administrators. The courts have generally invalidated legislation which bans outright the teaching of evolution in public schools, but with the advent of the "balanced treatment" acts, a revival of this litigation has begun. The author examines the constitutional analysis utilized by the courts in dealing with the "anti-evolution" and "balanced treatment" acts and provides an historical perspective of the first amendment to question the Court's response to the issue.

Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney

Pepperdine Law Review

Justice Hugo L. Black served on the United States Supreme Court over a period of thirty-four years, encompassing Supreme Court terms from 1937 to 1971. During this period, the subject of the constitutional limitations of the freedom of religion was increasingly subjected to intense social pressures. Justice Black figured prominently in the development of constitutional law as the Supreme Court attempted to give meaning to the establishment and free exercise clause of the first amendment. He wrote the majority opinions which dealt with the establishment clause in the Everson, McCulloin, Engel and Torcaso cases. Yet, on later occasions, Justice Black …

Marsh V. Chambers: The Supreme Court Takes A New Look At The Establishment Clause, Diane L. Walker

Pepperdine Law Review

No abstract provided.

Some Observations On The Establishment Clause, William French Smith

Pepperdine Law Review

As evidenced by current interpretations of the establishment clause, lower federal court decisions indicate an increased tendency of hostility toward religion. In this article, Attorney General William French Smith surveys the history of the establishment clause and Supreme Court decisions regarding religious issues. Attorney General Smith then notes the recent success of the Reagan Administration's efforts, through amicus curiae briefs, to advocate an interpretation of the establishment clause which permits the states to take an attitude of benevolent neutrality toward religion. The article then concludes that such a position is both historically and judicially sound.

Public Policy Against Religion: Doubting Thomas , Richard H. Seeburger

Pepperdine Law Review

In free exercise cases, the Supreme Court has adopted a least restrictive alternative test in an attempt to maximize protection for religiously motivated practices. Because the least restrictive alternative test only considers the importance of the governmental interest and the availability of alternative means to accomplish those interests, thereby ignoring the importance of the burdened religious activity to the individual and the degree of burden on religious activity, all religious interests are treated equally when asserted against a governmental interest. Under such an inflexible and brittle test, the Supreme Court has recently denied religious claims which had previously been recognized. …

Saving The First Amendment From Itself: Relief From The Sherman Act Against The Rabbinic Cartels, Barak D. Richman

Pepperdine Law Review

America’s rabbis currently structure their employment market with rules that flagrantly violate the Sherman Act. The consequences of these rules, in addition to the predictable economic outcomes of inflated wages for rabbis and restricted consumer freedoms for the congregations that employ them, meaningfully hinder Jewish communities from seeking their preferred spiritual leader. Although the First Amendment cannot combat against this privately-orchestrated (yet paradigmatic) restriction on religious expression, the Sherman Act can. Ironically, however, the rabbinic organizations implementing the restrictive policies claim that the First Amendment immunizes them from Sherman Act scrutiny, thereby claiming the First Amendment empowers them to do …

Blame It On Catholic Bishop: The Question Of Nlrb Jurisdiction Over Religious Colleges And Universities, Susan J. Stabile

Pepperdine Law Review

No abstract provided.

The Endorsement Test Is Alive And Well: A Cause For Celebration And Sorrow, Mark Strasser

Pepperdine Law Review

No abstract provided.

The Priority Of Law: A Response To Michael Stokes Paulsen, Eugene Volokh

Pepperdine Law Review

No abstract provided.

The Priority Of God: A Theory Of Religious Liberty, Michael Stokes Paulsen

Pepperdine Law Review

Professor Paulsen argues that religious freedom only makes entire sense as a constitutional arrangement on the premise that God exists, that God makes actual demands on human loyalty and conduct, and that those demands precede and are superior in obligation to those of the State. Religious freedom exists to protect the exercise of plausibly true understandings of God's actual commands, as against state power, and to disable state power to proscribe -- or prescribe -- religious exercise. The article explores four possible stances of society toward religious freedom, depending on whether society and state embrace the idea of religious truth …

'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett

Journal Articles

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component …

God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi

Scholarly Articles

Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.

This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

Many …

Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark L. Rienzi

Scholarly Articles

When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine were used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech, and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex.

Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been broader …

Allocating The Costs Of Parental Free Exercise: Striking A New Balance Between Sincere Religious Belief And A Child's Right To Medical Treatment , Paul A. Monopoli

Pepperdine Law Review

No abstract provided.

Government's Denigration Of Religion: Is God The Victim Of Discrimination In Our Public Schools?, Michael R. O'Neill

Pepperdine Law Review

No abstract provided.

State Action And The Supreme Court's Emerging Consensus On The Line Between Establishment And Private Religious Expression, Michael W. Mcconnell

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Religion, Government, And Law In The Contemporary United States, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I discuss the relationship between religion and government in the contemporary United States, addressing the period from the 1940s to the present. In so doing, I explore questions of religious liberty, including the protection of religious “free exercise” as well as the constitutional prohibition on the establishment of religion, a prohibition that sometimes - but not always - has been construed to require a “wall of separation” between church and state. I focus especially on the Supreme Court’s evolving interpretations of the First Amendment during this period, which, I suggest, were influenced by broader religious, cultural, and …

A Proposal To Expand The Religious Services Exemption Under The Copyright Act, Kevin M. Lemley

University of Arkansas at Little Rock Law Review

This article focuses on the religious services exemption to the Copyright Act. The religious services exemption is one of many exemptions that permit certain types of use without first obtaining permission from the copyright owner, or proving fair use. This article argues that the religious services exemption should be expanded to cover any work used in the course of services as well as the recording, broadcast, and transmission of the services.

The first part of this article analyzes the existing religious services exemption under the Copyright Act to define the bounds that uses fall under the exemption. The article then …

Religious Monopolies And The Commodification Of Religion, Shima Baradaran-Robison, Brett G. Scharffs, Elizabeth A. Sewell

Pepperdine Law Review

In recent years, the number of countries in which a dominant church receives state aid and other forms of preferential treatment has increased. Dominant religions and their supporters in the former Soviet bloc and elsewhere often argue that special benefits and protection are warranted based upon the unique history and contribution of the dominant church to the identity, history, and culture of the country, and the interests of the state and its citizens. Because of the distinctive status of religion and its importance to national and cultural identity, special protection, especially against foreign and other outside influence, is deemed necessary. …

Lutheran And Yet Not Lutheran: A Church School Tests The Dilemma Of Church And State, Marie Failinger

Faculty Scholarship

A small Lutheran church school dispute became a nationally debated case, Hosanna-Tabor Evangelical Lutheran Church and v. EEOC, decided by the Supreme Court on 11 January 2012. At the heart of the Supreme Court case was a controversy over the so-called "ministerial exception" to federal anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Until the Sixth Circuit Court of Appeals decision in Hosanna-Tabor, finding that Cheryl Perich was not a minister within the exception, all circuit courts to rule on the issue had recognized a ministerial exception in order …