Religion Law Commons^™

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

Chicago-Kent Law Review

As a number of commentators have observed, the Supreme Court's record in adjudicating the free exercise claims of religious minorities—in particular, unfamiliar and unpopular religious minorities—is vulnerable to the critique that the Court's rhetoric and, at times, the Court's holdings demonstrate an inability or unwillingness to look beyond majoritarian religious perspectives. Building on this scholarship, this article analyzes the Court's adjudication of Establishment Clause cases in the context of different religious perspectives, including those of religious minorities, religious minorities, and nonbelievers.

In exploring these questions, this article traces the Court's Establishment Clause jurisprudence through several decades, examining a number of …

The Constitutional Right Not To Kill, Mark L. Rienzi

Scholarly Articles

Federal and state governments participate in and/or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings. The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the …

Limiting Principles And Empowering Practices In American Indian Religious Freedoms, Kristen A. Carpenter

Publications

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress's subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was …

Religion And Public Reasons: Making Laws And Evaluating Candidates, Kent Greenawalt

Faculty Scholarship

This essay concerns religious reasons: how these compare with public reasons, and their appropriate place in the politics and law of the United States. Although I focus primarily on arguments about what this place should be, sound normative answers about these questions are closely connected to certain descriptive facts and estimates about what does happen and what is possible.

I tackle three separate questions. The first is the place of religious reasons in the formation and justifications of positions about what laws should be made. The second inquiry involves the place of such reasons in judicial decisions. The third question …

The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

Scholarly Articles

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in …

The Treatment Of Isolationist Minorities, Gabriel Rauterberg

Faculty Scholarship

This Note examines what may be the most radical challenge posed by religious subcultures to the liberal politics of modern industrial nations – that of isolationist, nonliberal ( or even illiberal) religious minorities. These subcultures do not seek to integrate with mainstream society or gain power within it, but to withdraw in order to maintain norms widely discrepant from those that are socially dominant. They often seek to place restrictions upon their own members' freedom or activities, in part to maintain the group's differences from the greater society. These cultures, characterized by features as distinctive as collective property ownership, pacificism, …

Reconciling The Irreconcilable: Military Chaplains And The First Amendment, Steven K. Green

West Virginia Law Review

No abstract provided.

Public School Students' Religious Speech And Viewpoint Discrimination, Kristi L. Bowman

West Virginia Law Review

No abstract provided.

Why Student Religious Speech Is Speech, John E. Taylor

West Virginia Law Review

No abstract provided.

The Establishment Clause And Religious Expression In Government Settings: Four Variables In Search Of A Standard, Daniel O. Conkle

West Virginia Law Review

No abstract provided.

Establishment Clause Limits On Free Exercise Accommodations, Kent Greenawalt

West Virginia Law Review

No abstract provided.

When Accommodations For Religion Violoate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck

West Virginia Law Review

No abstract provided.

Religious Exemptions And The Common Good: A Reply To Professor Carmella, Laura S. Underkuffler

West Virginia Law Review

No abstract provided.

Responsible Freedom Under The Religion Clauses: Exemptions, Legal Pluralism, And The Common Good, Angela C. Carmella

West Virginia Law Review

No abstract provided.

A Syllabus Of Errors, Douglas Laycock

Michigan Law Review

Modern American society is pervasively regulated. It is also religiously diverse to a degree that is probably unprecedented in the history of the world. It is inevitable that some of these diverse religious practices will violate some of these pervasive regulations, and equally inevitable that if we ask whether all these regulations are really necessary, sometimes the answer will be no. If we take free exercise of religion seriously, sometimes it will make sense to exempt sincere religious practices from generally applicable laws - but only some laws, and only some applications. Hardly anyone thinks that human sacrifice should be …

Establishment Clause Limits On Free Exercise Accommodations, Kent Greenawalt

Faculty Scholarship

Among the most vexing questions in the law of the religion clauses is when a legal measure that might otherwise be justified as an accommodation to free exercise is instead a forbidden establishment of religion. In a book about free exercise, I have provided some idea just how complex this question can be. I now tackle it head on. Scholars have fairly observed that the Supreme Court has given us no theory, or no tenable theory, for drawing the line between permissible accommodation and impermissible establishment. We will look at what the Court has said and done, as well as …

Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett

Journal Articles

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand church-state separation? …

Church, State, And The Practice Of Love, Richard W. Garnett

Journal Articles

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.

The specific goal for this paper is to draw from Deus caritas est some insight into …

Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett

Journal Articles

What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if …

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

ExpressO

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories …

The Equal Protection Of Free Exercise: Two Approaches And Their History, Bernadette Meyler

Cornell Law Faculty Publications

Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually intertwined. The seeds of an equal protection analysis of free exercise were, indeed, planted even before the Fourteenth Amendment within the constitutional jurisprudence of the several states. Furthermore, this Article argues, equal protection approaches should not be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection. By ignoring the lessons …

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

ExpressO

Sikhism is a 500 year old religion with a growing presence in the United States. However, one of the articles of faith required for Sikhs, a kirpan (a ceremonial sword), conflicts with the norms of American life for these often misunderstood people. This paper gives a brief primer on Sikhism and discusses some of the day-to-day problems and recent issues facing kirpan-carrying Sikhs in North America. Upon reviewing the current state of free exercise jurisprudence as applied to the kirpan, I outline several suggestions for the acceptance and accommodation of kirpans.

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 …

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 …

Davey And The Limits Of Equality, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

More Is Less, Philip A. Hamburger

Faculty Scholarship

Is the First Amendment's right of free exercise of religion conditional upon government interests? Many eighteenth-century Americans said it was utterly unconditional. For example, James Madison and numerous contemporaries declared in 1785 that "the right of every man to exercise ['Religion'] ... is in its nature an unalienable right" and "therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society." In contrast, during the past forty years, the United States Supreme Court has repeatedly conditioned the right of free exercise on compelling government interests. The Court not merely qualifies the practice of the …

Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck

Faculty Publications

The purpose of the Establishment Clause is not to safeguard individual religious rights. That is the role of the Free Exercise Clause, indeed its singular role. The purpose of the Establishment Clause, rather, is as a structural restraint on governmental power. Because of its structural character, the task of the Establishment Clause is to limit government from legislating or otherwise acting on any matter "respecting an establishment of religion." The powers that fall within the scope of the foregoing clause (denied to government, hence within the sole province of religion) and the powers outside this clause (hence, authority vested in …

Free Exercise, Federalism, And The States As Laboratories, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

City Of Boerne V. Flores Wrecks Rfra: Searching For Nuggets Among The Rubble, John Gatliff

American Indian Law Review

No abstract provided.

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 …