Religion Law Commons^™

Chipping Away At Stone: Rethinking The Establishment Clause After Kennedy, Christian Edmonds

Pace Law Review

In Kennedy v. Bremerton School District, the Supreme Court abandoned the Lemon test and replaced it with a framework grounded in historical practices and understandings. Yet lower courts have struggled to operationalize that standard, and some have continued to rely on Stone v. Graham, a brief 1980 per curiam opinion rooted entirely in Lemon, as controlling precedent. This Article argues that Stone cannot survive Kennedy’s wholesale repudiation of Lemon and its progeny. Using the Fifth Circuit’s decision in Roake v. Brumley, which struck down Louisiana’s Ten Commandments display law on the basis of Stone, as a case study, the Article …

Incorporating Principles And Wisdom From Hospital Chaplaincy And Pastoral Ministry To Create A Ministry Model To Address Social Isolation And Loneliness In Black Churches, Albert A. Kemp

Doctor of Ministry Projects and Theses

To address the growing and widespread epidemic of social isolation and loneliness, with special focus on Black churches, this dissertation developed a program with the following areas of application: 1) how healthcare trained chaplains can coordinate with churches to positively impact individuals identified as lonely and socially isolated with better social and physical health, 2) how principles of chaplaincy and pastoral care can mitigate and intervene competently when such people are identified, and 3) how the project’s model can be organized, taught, and incorporated into existing arenas of church ministry.

The purpose of the project was to create a ministry …

“Supreme Court, Tear Down This Wall!”: Kennedy V. Bremerton School District And The Erosion Of The Barrier Between Church And State, Ari Allon

NSU Undergraduate Law Journal

This Article conducts a critical examination of Kennedy v. Bremerton’s ruling, which replaced the Lemon test with the historical practices and understandings test. Following a brief background on the Religion Clauses’ jurisprudence, the author contests that the historical practices and understandings test fails to adhere to long-held Supreme Court reasoning behind the creation of the Religion Clauses. This new test is likewise an insufficient framework for determining Establishment Clause violations.

The Article continues with an analysis on the conflicting fact patterns between the majority and dissenting opinions of Kennedy v. Bremerton. The author then discusses the precedential impact …

One Year Of The Papacy Of Leo Xiv: The Role Of The Catholic Church In International Conflict Resolution, Cardozo Christian Law Student Association (Clsa), Cardozo International Law Society, Cardozo Dispute Resolution Society

2025–2026 Flyers

A roundtable discussion examining the first year of the papacy of Pope Leo XIV and the role of the Catholic Church in international conflict resolution.

Speaker: Dmytro Vovk, Visiting Professor, Benjamin N. Cardozo School of Law

Faith Misplaced: Working Out The Roles Of Faith And Law In Pluralist Democracies, Seow Hon Tan

Research Collection Yong Pung How School Of Law

In pluralist democracies where legal and constitutional rights to freedom of conscience and religion exist, one can too readily-and sometimes, misguidedly - conclude that faith-based arguments, or arguments made by those who are religiously motivated, have little or no place in lawmaking. For example, it maybe thought that free and equal citizens have been accorded the freedom (not) to profess and practice a religion. Given the ubiquity of law and its impact on all, including those without a religion, if the religious were to shape the law from religious perspectives, freedom of others may be negatively impacted or rendered nugatory …

Sabbath Accommodations As A Civil Right: History, Title Vii, And The Path To Groff V. Dejoy, Isaac May

FIU Law Review

In Groff v. DeJoy, which concerned a Christian Sabbath observer, Jewish groups were vindicated by the Court’s overturning Hardison v. Transworld Airlines and strengthening Title VII’s protections for religion, particularly around employees’ Sabbath observance. This article positions Groff within the history of Jewish efforts to secure employment protections for Sabbath worship. Efforts to secure Sabbath accommodations were an outgrowth and expansion of early twentieth-century efforts to ensure Jews were protected by public accommodation laws and a product of attempts by litigators such as Leo Pfeffer to end mandatory Sunday closing laws in the mid-twentieth century. Sabbath accommodations became a critical …

Interpreting Religious Doctrine: The Third Rail That Wags The Dog In Religion Clause Jurisprudence, Samuel J. Levine

Washington and Lee Law Review

This Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely …

Can Human Rights Be Reconciled With Citizenship: Reconsidering Marx's Zur Judenfrage Today, David Ingram

Philosophy: Faculty Publications and Other Works

This essay critically re-examines Marx’s youthful analysis of the separation of church and state and his complex views about the function of rights in the modern state. I argue that Marx’s condemnation of Christian nationalism and endorsement of citizenship for Jews is consistent with his view that the modern, secular state cannot emancipate itself entirely from religiosity, as evidenced by the continuing legacy of nationalism and cultural identity politics today. Although Marx correctly follows Hegel in identifying modernity with a structural differentiation between civil society and state, I argue that he misunderstands the nature of this separation and, along with …

Systemic Racism Transformed To Shalom Justice., Bobby West

Doctor of Ministry Projects and Theses

ABSTRACT

April 27, 2024

SYSTEMIC RACISM TRANSFORMED TO SHALOM JUSTICE

This study examines the pervasive culture of systemic racism in the church and non-church communities and its impact on America. It argues how culture and systemic racism impact marginalized people (particularly African Americans and brown people) through policies and systems related to money, employment, education, health care, etc. Providing a description or argument for systemic racism formation offers a historical context of changes to shalom justice (society race in the image of God), relational and unilateral power with, power to, power within transformation from injustice to Shalom justice. An exploration …

The Dueling First Amendment Clauses: Are They In Tension, Or Do They Work Together?, James Black

Helm's School of Government Conference - 2021-2024

The Establishment and Free exercise clauses of the First Amendment respectively state that Congress does not have the ability to pass a law that would either establish a national religion or prohibit the free exercise of any religion. While some legal scholars have given a more secular interpretation of the Establishment Clause, suggesting that there is no place for Christianity or any other religion in the public square or to influence American government, this is in conflict with interpretation by a substantial number of legal experts and constitutional scholars living both in and before the modern era, some of whom …

Protecting "Sincerely Held Religious Beliefs": Lessons From Mississippi Hb 1523, Lindsay Krout Roberts

MC Law Review

The United States Supreme Court's revolutionary ruling in Obergefell v. Hodges, which guaranteed marriage equality for homosexual couples in every state, gave life to a new challenge in the area of free exercise of religion: to what extent should persons with religious objections to same-sex marriages be forced to participate in them? Should a Christian baker be legally required to bake a wedding cake for a homosexual marriage to which he or she objects? Must a county clerk with religious objections to homosexual marriage sign a marriage license for a same-sex couple?

In an attempt to pre-empt these types of …

Who Let The Ghouls Out? The History And Tradition Test’S Embrace Of Neutrality And Pluralism In Establishment Cases, Jake S. Neill

Pepperdine Law Review

In June of 2022, the Supreme Court decided in Kennedy v. Bremerton School District that an Establishment Clause inquiry “focused on original meaning and history” would replace Lemon’s endorsement test. But after announcing the test, the Court neglected to describe or apply it. This Comment attempts to fill that void. After analyzing the Court’s Establishment Clause jurisprudence, this Comment proposes tenets of the history and tradition test and applies those tenets to Allegheny County v. ACLU, a case decided under Lemon. Finally, this Comment concludes by arguing that the history and tradition inquiry supports pluralism, humility, tolerance, and a healthy …

Agent Of Russian Interests Abroad: Assessing The Moscow Patriarchate’S Activity In The Balkans And Beyond, Robert C. Blitt

Scholarly Works

This Article addresses the role played by the Russian Orthodox Church—Moscow Patriarchate (ROC) in supporting the Kremlin’s policy objectives in the Balkans, a region with significant historical ties to Russia and a common religious heritage steeped in Eastern Orthodoxy. In the face of Russia’s invasion of Ukraine, concern for the region’s stability has grown. This is particularly so due to Kremlin efforts to deflect attention away from Ukraine by fueling ethnic, religious, and political tensions left over from the U.S.-brokered Dayton Accords that ended the years of war following Yugoslavia’s collapse.

The analysis presented herein demonstrates that the ROC’s operation …

Christian Domination, Ruth Colker

American University Law Review

It is hard to deny that the United States is a Christian nation despite the First Amendment’s promise that the legislature will not establish a religion. The United States is not a Christian nation merely because of the religious beliefs that many people privately hold. It is a Christian nation, in part, because the courts and legislatures have facilitated that development. Moreover, as this Article will argue, Christian favoritism within the political and legal system has developed in sharp contrast to the treatment of Black people, women, the LGBTQ+ community, and disabled people.

This Article explores the development of Christian …

Religious Freedom And Diversity Missions: Insights From Jesuit Law Deans, Anthony E. Varona, Michèle Alexandre, Michael J. Kaufman, Madeleine M. Landrieu

Seattle University Law Review

This Article is a transcript of a panel moderated by Anthony E. Varona, Dean of Seattle University School of Law. During the panel, Jesuit and religious law school deans discussed what law schools with religious missions have to add to the conversation around SFFA and the continuing role of affirmative action in higher education.

The Repeal Of Religious Accommodations -- A Constitutional Analysis, Ronald J. Colombo

American University Law Review

Under modern Supreme Court jurisprudence, the First Amendment ordinarily imposes no heightened standard of review upon neutral laws of general applicability that coincidentally burden the free exercise of religion. To relieve or minimize this burden, however, lawmakers are generally free to promulgate exemptions from, or accommodations to, such laws for the benefit of religious adherents. Such accommodations are common.

When a law is not neutral with respect to religion, or when the law is not generally applicable, then it will be subject to the exacting test of strict scrutiny to the extent that it burdens the free exercise of religion. …

Defining Religion And Accommodating Religious Exercise, Justin Collings, Anna Bryner

Indiana Law Journal

It is a volatile time in the jurisprudence of the First Amendment’s Religion Clauses. In recent terms, the U.S. Supreme Court has revisited many key Church-State and free exercise questions, and the Justices seem poised to revisit several more. Each of these fundamental questions presupposes an antecedent question: what, for constitutional purposes, is religion itself? The Court has never answered this question consistently or systematically. But, at least in the case of constitutionally mandated religious exemptions, a clear pattern emerges over time: the broader the Court’s definition of religion, the weaker its regime of religious exemptions. The reverse has also …

Comparative Intellectual Property & Religion, Tabrez Y. Ebrahim

IP Theory

This Article introduces religion to comparative IP scholarship and explains how faith-based considerations can enhance it. Comparative IP scholars have extensively studied different IP laws in different jurisdictions, but they seemed to suggest an erroneous view that comparative IP and religion are like two parallel lines without intersection. Building on these scholars’ work, this Article discusses religion’s role in fostering a new vehicle for discussion and a new normative lens with the aim of ascertaining the existence and extent of religion in legal systems, serving as part of the comparison methodology between legal systems with potential for influencing the policy …

Kaplan V. Independent School District Of Virginia—The Max Kaplan Story, Mike Steenson

Mitchell Hamline Law Review

No abstract provided.

No Strings Attached: How Catholic Institutions Prospered At The Expense Of The Administrative State And Patient Autonomy, Lori Freedman, Kimani Paul-Emile

Faculty Scholarship

Catholic hospitals and health systems have proliferated and succeeded in American healthcare; they now operate four of the largest health systems and serve nearly one in six hospital patients. Like other religious entities that Wuest and Last write about in this issue, in their article Church Against State, they have benefited by and supported the long reach of conservative efforts to undermine the administrative state.

The United States Supreme Court’S Interpretation Of The “Establishment Clause” And How It Has Impacted Texas Politics Today, Rebecca Hailie Castro

Honors Program Theses and Research Projects

The Establishment Clause, since its creation in 1787, has worked towards creating a separation of church and state rooted in religious liberty after colonists fled England and the Church of England. In the centuries that have passed, the judiciary branch of the United States has been creating lasting precedents for how the Establishment Clause should be illustrated in the National Government and in the states. However, the long-lasting division between church and state has been decreasing, especially following a recent Supreme Court decision: Kennedy v. Bremerton School District (2022). The ramifications of entangling church and the state include, but are …

Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth

University of Cincinnati Law Review

No abstract provided.

Education, The First Amendment, And The Constitution, Erwin Chemerinsky

University of Cincinnati Law Review

No abstract provided.

School Matters, Ronna Greff Schneider

University of Cincinnati Law Review

No abstract provided.

Queer Crises: Movements From Queerness And Feelings Of White Religion In The United States, Austin Williams Miller

Communication ETDs

Anchored by contemporary crises surrounding queer and trans people in the United States, I employ movements from queerness within an affective queer phenomenological framework to understand how arrangements of “white religion” (Schaefer, 2015, p. 63), a process whereby U.S. American Christian forms escape ideology into religious affective economies in the United States, relegate queer people “to the background… to sustain a certain direction” (Ahmed, 2006, p. 31). I assemble a queer rhetorical context analyzing white religious space in documentary film, secular sexual regulation through contemporary U.S. legal contexts around marriage, and settler colonial Christian nationalist political imaginations to critique how …

Contingency And Contestation In Christianity And Liberalism, Michael P. Moreland

Faculty Publications

No abstract provided.

When Life Begins: A Case Study Of The Unitarian Universalism Faith And Its Potential To Combat Anti-Abortion Legislation, Jennifer O'Rourke

University of Cincinnati Law Review

No abstract provided.

Religion As Disobedience, Xiao Wang

Vanderbilt Law Review

Religion today offers plaintiffs a ready path to disobey laws without consequence. Examples of such disobedience abound. In the past few years alone, courts have enjoined vaccine mandates, invalidated stay-at-home orders, and set aside antidiscrimination laws protecting same-sex couples. During the 2021-2022 Term, plaintiffs relied once again on free exercise to subvert laws governing public education, capital punishment, and school prayer. Some hospitals have begun denying fertility treatment to LGBTQ employees on this same basis.

How did religion become a skeleton key for lawbreaking without repercussion? The conventional wisdom is that, after decades of neglect, the Supreme Court finally began …

Table Talk: Short Talks On The Weightier Matters Of Law And Religion, John Witte Jr.

Center for the Study of Law and Religion Books

“Table talks” have long been a familiar genre of writing for jurists, theologians, politi­cians, and novelists. In this little volume, thirty sage reflections on how to thrive in law school and in the legal profession are offered: short commentaries on controversial matters of faith, freedom, and family; pithy sermons on difficult biblical texts about law and justice; and touching tributes to a few of his fallen heroes. Most of the thirty texts gathered here were made at seminar tables, academic roundtables, editorial tables, and Eucharist tables. Cast in avuncular form, these texts probe what makes life worth living, work worth …

Covid-19, Free Exercise, And Most Favored Nation Status, Mark Strasser

Lewis & Clark Law Review

Commentators and some Justices suggest that religious activity is accorded a kind of Most Favored Nation status under free exercise guarantees—if a statutory exception is made for a relevantly similar secular activity, then an exception must also be made for religious activity. Such an approach would require a careful consideration of which secular activities were relevantly similar to religious activities to warrant protecting the latter. But the Most Favored Nation approach involves a mischaracterization of the past jurisprudence. Further, as is evidenced in the COVID cases, the U.S. Supreme Court does not engage in a nuanced consideration of which activities …