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 …

O'Connor: A Dual Role - An Introduction, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

A Miracle, A Universe: Settling Accounts With Torturers, Juan E. Mendez

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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.

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".

Onward Constitutional Soldiers, Milner S. Ball

Michigan Law Review

A Review of Constitutional Faith by Sanford Levinson

Church Autonomy In The Constitutional Order - The End Of Church And State?, Gerard V. Bradley

Journal Articles

"Separation of church and state" is right up there with Mom, apple pie, and baseball in American iconography. If everyone agrees on separation of church and state, why does the relationship between religion and public life so vex, excite, and confound us? Part of the reason is that church-state separation, although it is the historical achievement of societies decisively shaped by a Christianity that was itself decisively shaped by Judaism, is a commodious concept.

But "separation of church and state" is not contentless, and our conclusive agreement on it, I submit, provides a valuable common frame of reference in an …

Catholic Labor Theory And The Transformation Of Work, David L. Gregory

Washington and Lee Law Review

No abstract provided.

Chapter 3 - Religion, Rights And Difference In The Early Woman's Rights Movement (Previously Published Article), Elizabeth B. Clark

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

The meeting of feminists at Seneca Falls in July of 1848 marked the nominal beginning of the movement which in the nineteenth century was labeled "woman's rights." For us that term has become commonly interchangeable with "suffrage," and we often assume that "woman's rights" describes a seventy-odd year campaign to gain civil and political power and protection from a government which -- although it had perpetrated outrages against women and blacks -- had an unquestioned legitimacy as the guarantor and enforcer of rights.

But Reverend, Why Does Your Baptismal Font Have A Diving Board? Equitable Treatment For Vows Of Poverty Under The Federal Income Tax , J. Timothy Philipps

Washington and Lee Law Review

No abstract provided.

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

Faculty Publications

Federal and state courts are increasingly confronted with the unenviable task of giving legal definition to matters affecting relations between religion and government.' Many of the lawsuits pitting church against state are surface manifestations of a more fundamental disintegration of an American public philosophy.

Five Views Of Church-State Relations In Contemporary American Thought, Carl H. Esbeck

Faculty Publications

Views concerning the appropriate relationship between church and state are rapidly becoming almost as numerous as America's religious sects. The Constitution's treatment of religious liberty, thought by many to be a matter long settled, has now erupted into a many-sided debate. Not only lawyers, judges and legal commentators are involved; historians and sociologists, theologians and ecclesiastics, political theorists and statesmen also participate in the debate. It is part of a much larger struggle over a redefinition, or for some a reclamation, of the role of religion in American public life. At times this debate focuses on discrete environments, such as …

Use Of Government Funding And Taxing Power To Regulate Schools, Carl H. Esbeck, Kline Capps

Faculty Publications

The past two decades in America have witnessed a resurgence of interest in religious-based schooling. Manifestations of this trend are evident in the increased number of primary and secondary students enrolled in religious schools and the rapidity with which new church-affiliated schools are being opened.

Toward A General Theory Of Church-State Relations And The First Amendment, Carl H. Esbeck

Faculty Publications

Although government intervention in religious affairs is a new and understandably worrisome experience for many American churches, history instructs us that the confrontation is not novel. We can find some comfort in the fact that this double wrestle of state with church and state with individual believers is a perennial match. After all, it has been nearly sixty years since a brutish measure in Oregon making parochial school education unlawful had to be sidelined by the United States Supreme Court in Pierce v. Society of Sisters.' Over forty-five years ago the Supreme Court decided Lovell v. City of Griffin, snuffing …

The Naked Public Square: Religion And Democracy In America , Carl H. Esbeck

Faculty Publications

A crisis of confidence in our institutions and talk about loss of life's purpose are everywhere. Sociologists describe the modern individual's sense of isolation, his so-called spiritual homelessness, his weakening sense of values, and his bewilderment in the face of seemingly impersonal forces before which he feels helpless and often victimized.

Establishment Clause Limits On Governmental Interference With Religious Organizations, Carl H. Esbeck

Faculty Publications

In this article it will be argued that the establishment clause, properly viewed, functions as a structural provision regimenting the nature and degree of involvement between government and religious associations." The degree of involvement should be a limited one, although it is clear that the interrelationship need not nor cannot be eliminated altogether. Although the degree of desired separation has proven to be a continuing controversy, the goal of separation is not so divisive. The aim of separation of church and government is for each to give the other sufficient breathing space. The ordering principle is reciprocity in which "both …

Religion On Trial: George V. International Society Of Krishna Consciousness, Wilbert Lee Taylor

University of Baltimore Law Forum

No abstract provided.

Religion And A Neutral State: Imperative Or Impossibility?, Carl H. Esbeck

Faculty Publications

The thesis of this Article is that the myth-of-neutrality argument is partially right and partially wrong. For reasons of religious liberty, the state can and should avoid any involvement with matters of religious worship, and the propagation or inculcation of matters that comprise the very heart of one's belief concerning the nature and destiny of mankind. Conversely, the state cannot retreat from the regulation of certain conduct which is arguably immoral and still claim its neutrality concerning the rightness of the conduct. The very decision by the state to withdraw its regulation, leaving the morality of the conduct up to …

Reinterpreting The Religion Clauses: Constitutional Construction And Conceptions Of The Self, Susan H. Williams

Articles by Maurer Faculty

The first amendment guarantees freedom from "law[s] respecting an establishment of religion or prohibiting the free exercise thereof." The apparent tension between the two clauses of this provision has generated judicial confusion and scholarly disagreement. The perceived conflict between the religion clauses is the product of a particular understanding of what is most fundamental about human identity and the human situation - an understanding that derives from classical liberal political theory and that assumes a sharp division between the individual and his community. This Note proposes an alternative to the liberal conception of human identity, one that encompasses both the …

Virginia Tax Laws Affecting Churches, J. Rodney Johnson

Law Faculty Publications

This is the second of two articles dealing with external church law in Virginia. The first article was a restatement of all Virginia laws relating to churches except for the tax laws. The subject of taxes was reserved for special treatment at that time because of the volume of tax-related materials. For the most part these materials consist of the various constitutional and statutory taxation provisions relating to religious charities and the opinions of the Virginia Attorney General interpreting and applying these provisions. Attorney General opinions take on a special importance in this study because there is only a handful …

A Sect Apart: A History Of The Legal Troubles Of The Shakers, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

This article explores the Shaker experience in nineteenth century America, particularly their relationship to legislative bodies and courts and analyzes the reasons underlying the persistent, selective, official persecution of this group.

Bringing Christian Schools Within The Scope Of The Unemployment Compensation Laws: Statutory And Free Exercise Issues, R. Leonard Davis Iii

Villanova Law Review (1956 - )

No abstract provided.

The Irrelevance Of The Constitution: The Religion Clauses Of The First Amendment And The Supreme Court, Philip B. Kurland

Villanova Law Review (1956 - )

No abstract provided.

The Forum Of Conscience: Applying Standards Under The Free Exercise Clause, Paul Marcus

Faculty Publications

The 1973 Supreme Court decision in Wisconsin v. Yoder reenforced and amplified the Court's earlier holding in Sherbert v. Verner that the free exercise clause of the first amendment requires the state to render substantial deference to religiously motivated behavior in the application of its laws and regulatory schemes. In this article, Mr. Marcus traces the evolving standards of free exercise doctrine and observes that the "balancing test" which has resulted from that evolution requires still further refinement to give religious freedom its full constitutional due. The author then illustrates how the new standards of free exercise might be applied …

The Warren Court: Religious Liberty And Church-State Relations, Paul G. Kauper

Michigan Law Review

The purpose of this Article is to analyze the holdings of the Warren Court under these two clauses in an attempt to assess their significance by reference both to earlier interpretations and to the direction they may give to future development.

The New York State Constitution And Aid To Church-Related Schools, Charles E. Rice

Journal Articles

In summary, it is fair to say that to regard the rule of the Judd case as retaining its original vitality would be to lend undue credence to an erroneous construction of the 1938 amendment to Section 3 of Article XI of the New York State Constitution. For, although that amendment provided only for transportation of pupils, it should be construed in its true light as a reaction to the Judd decision which called it forth. As such it specifically validated only the provision of transportation which the legislature had enacted in 1936 and which the Judd Court had nullified. …

Book Reviews, Ronan E. Degnan, Jerold Israel, Robert F. Drinan S.J.

Vanderbilt Law Review

Cases and Materials on Debtor and Creditor

By Vern Countryman

Boston: Little, Brown & Co., 1964. Pp. lxiii, 841. $12.50.

reviewer: Ronan E. Degnan

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The Supreme Court on Trial

By Charles S. Hyneman

New York: Atherton Press, 1963. Pp. IX, 308. $6.50.

reviewer: Jerold Israel

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Religion and American Constitutions (1963 Rosenthal Lectures)

By Wilbur G. Katz

Northwestern University Press 1964. Pp. 114. $3.50.

reviewer: Rev. Robert F. Drinan, S.J.

The Meaning Of "Religion" In The School Prayer Cases, Charles E. Rice

Journal Articles

It is not my purpose here to discuss the possible extensions of the school prayer decisions. Rather, I am concerned only with the thought that the unqualified incorporation of the broad definition of religion into the establishment clause is perhaps the root fallacy in the Court's reasoning. In order to avoid an institutionalization of agnosticism as the official public religion of this country, the Court ought to acknowledge that nontheistic religions are not entitled to such unqualified recognition under the establishment clause as to bar even a simple governmental affirmation that in fact the Declaration of Independence is true when …

Let Us Pray - An Amendment To The Constitution, Charles E. Rice

Journal Articles

The catholic, and especially the Catholic lawyer, ought to consider the school prayer matter in several aspects. One aspect is the problem of constitutionality. Another is the question of the practical benefit to be derived from the institutionalization of governmentally-sponsored religious observances. And a third is the problem of whether the long-term interest of the Church will be served by an amendment to overrule the United States Supreme Court's decisions. It will be profitable here to discuss the problems of constitutionality and practical benefit before proceeding to an inquiry as to whether the Catholic opponents of an amendment are, perhaps …

Constitutional Law - Separation Of Church And State - Bible Reading In The Public Schools, Frederic F. Brace Jr.

Michigan Law Review

The plaintiff, as a citizen, taxpayer, and parent of school children, sought an injunction to restrain the defendant school board from allowing school teachers to read the Bible aloud to students as required by a Tennessee statute. The plaintiff contended that this practice was offensive to him and in violation of the Tennessee and United States Constitutions. The trial court sustained defendant's demurrer. On appeal, held, affirmed. The statute violates neither constitution because it is not an interference with students' or parents' religious beliefs. Carden v. Bland, (Tenn. 1956) 288 S. W. (2d) 718.