Religion Law Commons^™

The Pluralistic Foundations Of The Religion Clauses, Steven H. Shiffrin

Cornell Law Faculty Publications

Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in …

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 …

Liberalism And The Establishment Clause, Steven H. Shiffrin

Cornell Law Faculty Publications

Every political theory tolerates some things and not others. Every political theory promotes a particular kind of person even if it denies it is doing so. But the best liberalism does not confine itself to promoting a Rawlsian-tolerant citizen. Liberalism, like conservatism, has greater ambitions in the socialization of the young. The best liberalism, a neo-Millian liberalism, promotes a creative, independent, autonomous, engaged citizen and human being who works with others to make for a better society and speaks out against unjust customs, habits, institutions, traditions, hierarchies, and authorities.

Although government may promote a particular conception of the good life, …

Separating Church And State: Roger Williams And Religious Liberty, Kurt T. Lash

Law Faculty Publications

Roger Williams was a religious bigot. He never met a church pure enough for his brand of Puritanism, and he never found a congregation worthy enough to have him as its pastor. After alienating every potential ally and provoking every critic, Williams was forced to flee to the wilds of Narragansett Bay in present-day Rhode Island. There, he preached to his remaining congregation- his family- and supported laws prohibiting men from wearing long hair.

In Timothy Hall's illuminating book, the reader is confronted with a flesh and blood Roger Williams who is rather different from the modern myth. Although Williams …

Indian Religious Freedom: To Litigate Or Legislate?, Louis Fisher

American Indian Law Review

No abstract provided.

Towards A Defensible Free Exercise Doctrine, Frederick Mark Gedicks

Faculty Scholarship

Almost from the moment that the Supreme Court abandoned the religious exemption doctrine in Employment Division v. Smith, its defenders have worked to bring it back. More than a decade later, however, Smith remains well-entrenched; not only has the Court confirmed Smith's basic holding, but it also struck the Religious Freedom Restoration Act, Congress's first effort to restore the exemption doctrine, at least as it applied to the states.

Proponents of religious exemptions cannot ignore the hard truth that they can no longer be defended. During the nineteenth and early twentieth centuries, American society viewed the practice of religion-mostly Christian …

Leveling The Playing Field For Religious "Liberty" In Russia:, Afina Lekhel

Vanderbilt Journal of Transnational Law

The purpose of this Note is to present a more comprehensive framework for analyzing the status of religious human rights in Russia after the enactment of the new law. Following the insights of an eminent scholar on law and religion, Prof. Harold J. Berman, the topic may be evaluated with a view to positive law (Zakon), moral theory (Pravo), and Russian historical experiences. Generally, positive law refers to domestic legal norms. Moral theory also stems primarily from domestic supra-legal sources, but it may connote global human rights principles where a state subscribes to monism, as Russia currently does. Historical contingencies …

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

American Indian Law Review

No abstract provided.

Passage Of Religious Freedom Act Necessary To Fulfill Maryland's National Leadership Role, Kenneth Lasson

All Faculty Scholarship

Three hundred sixty-four years ago this month, two tiny sailing ships arrived near what is now St. Mary's City with the first settlers in Maryland. The Ark and the Dove were sent to the New World by Cecil Calvert. Lord Baltimore had founded his small colony as a haven for those persecuted in England because of their religious beliefs.

On numerous occasions since then - from passage of the Act of Toleration in 1649 to the achievement of full civil liberties for Jews in 1825 to landmark Supreme Court decisions involving the state in the 1960s - Maryland has been …

Congressional Alternatives In The Wake Of City Of Boerne V. Flores: The (Limited) Role Of Congress In Protecting Religious Freedom From State And Local Infringement, Daniel O. Conkle

Articles by Maurer Faculty

This article discusses and analyzes City of Boerne v. Flores, the Supreme Court's 1997 decision invalidating the Religious Freedom Restoration Act of 1993 (RFRA) as applied to state and local governments, and it explores a variety of ways in which Congress might respond to Boerne with legislation that might survive constitutional scrutiny. In particular, the article addresses the following statutory possibilities: more narrowly tailored legislation grounded on Section 5 of the Fourteenth Amendment; RFRA-like legislation grounded on Congress's power over interstate commerce or its power to implement treaties; and spending-power legislation imposing RFRA-like conditions on the receipt of federal funding …

The Status Of Constitutional Religious Liberty At The End Of The Millennium, Kurt T. Lash

Law Faculty Publications

I have the privilege of introducing the 1998 Bums Lecture Symposium- Religious Liberty in the Next Millennium: Should We Amend the Religion Clauses of the United States Constitution? My role in this Symposium is to acquaint you with the religion clauses of the Constitution- where they came from- where they've been- and where they seem to be today. Our Symposium contributors, Professors Kent Greenawalt and Robert George will discuss just where they think the religion clauses should go in the future.

Civilizing Religion, Kurt T. Lash

Law Faculty Publications

Is it appropriate to restrict abortion at any stage in pregnancy on the ground that human life is sacred? Should the public square be open to biblical arguments against homosexuality? Or, to frame the issue in a more scholarly fashion: What role may religious arguments play, if any, either in public debate about what political choices to make or as the private basis of a political choice? In his recent book, Religion in Politics: Constitutional and Moral Perspectives, Michael Perry addresses these questions as a matter of constitutional law and political morality. Perry has been down this road before, most …

On Public Reason, Kent Greenawalt

Faculty Scholarship

Since the publication of A Theory of Justice in 1971, John Rawls has refined, qualified, and enriched his political philosophy, responding generously and with patient analytical care to difficulties posed by critics. Political Liberalism embodies the major developments in Rawls's thought during those two decades. Rawls continues to be a strong defender of political liberalism, but in various respects his philosophical claims are more modest than those he offered in 1971, and the political life he recommends involves more accommodation to the diverse perspectives and ways of life one expects to find in liberal democracies. In most of the chapters …

Table Of United States Supreme Court Decisions Relating To Religious Liberty 1789-1994, Carl H. Esbeck

Faculty Publications

No abstract provided.

1993 Survey Of Trends And Developments On Religious Liberty In The Courts, Carl H. Esbeck

Faculty Publications

The purpose of this survey is to note important case law developments in the state and lower federal courts concerning religious liberty. Purposely omitted are the widely reported United States Supreme Court opinions, as well as cases where the Supreme Court has granted review during the 1993-94 term. The focus here is on significant or interesting cases that may otherwise escape broad attention. Only the facts and rationale of each decision is summarized. No editorial comment on the merits of these cases is intended.

Volitionalism And Religious Liberty, David C. Williams, Susan H. Williams

Articles by Maurer Faculty

No abstract provided.

1987 Survey Of Trends And Developments On Religious Liberty In The Courts, Carl H. Esbeck

Faculty Publications

The purpose of this survey is to note important caselaw developments in the state and lower federal courts concerning religious liberty. Purposely omitted are the widely reported United States Supreme Court opinions, as well as cases where the Court has granted review during the 1987-88 term. The focus here is to collect significant cases that may otherwise escape broad attention. Only the facts and rationale of each court's decision is recorded. No editorial comment on the merits of these cases is intended.

Disestablished Religion In Pennsylvania And Kentucky: A Study In Constitutional Interpretation, Kenneth S. Gallant

Law Faculty Scholarship

No abstract provided.

Freedom Of Conscience: Separating Church And State, Jethro K. Lieberman

Articles & Chapters

No abstract provided.

1985 Survey Of Trends And Developments On Religious Liberty In The Courts, Carl H. Esbeck

Faculty Publications

The purpose of this survey is to note important caselaw developments in the state and lower federal courts concerning religious liberty during 1985. Purposely omitted are the widely reported United State Supreme Court opinions, as well as cases where the high court has granted review during its 1985-86 term. The focus here is to collect significant cases that may otherwise escape broad attention. Only the facts and rationale of each court's decision is recorded. No editorial comment on the merits of these cases is intended.

1986 Survey Of Trends And Developments In Religious Liberty In The Courts, Carl H. Esbeck

Faculty Publications

The purpose of this survey is to note important caselaw developments in the state and lower federal courts concerning religious liberty. Purposely omitted are the widely reported United States Supreme Court opinions, as well as cases where the high court has granted review during its 1986-87 term. The focus here is to collect significant cases that may otherwise escape broad attention. Only the facts and rationale of each court's decision is recorded. No editorial comment on the merits of these cases is intended.

The Concept Of Religion In State Constitutions, Kent Greenawalt

Faculty Scholarship

A year and a half ago an article of mine was published on religion as a concept in constitutional law. The article concerned how courts should approach decisions about whether a belief, practice, organization, or classification is religious. The article did not address, except in passing, what the constitutional standards under the free exercise and establishment clauses should be if something that is religious is aided or inhibited in some way. Since in most cases arising under the religion clauses, the presence of something religious is not itself disputed, my article concerned only a small slice of religion cases.

My …

Kauper: Religion And The Constitution, Wilber G. Katz

Michigan Law Review

A Review of Religion and the Constitution. By Paul G. Kauper.

Giannella: Religion And The Public Order, Rev. Robert F. Drinan S. J.

Michigan Law Review

A Review of Religion and the Public Order. An Annual Review of Church and State and of Religion, Law and Society, The Institute of Church and State, Villanova University School of Law. Edited by Donald A. Giannella.

Church, State, And Freedom: A Review, Paul G. Kauper

Michigan Law Review

The Supreme Court's opinion in the Everson case declaring that the separation-of-church-and-state limitation derived from the First Amendment was equally applicable to the states via the Fourteenth Amendment opened up new vistas on the church-state problems in this country. Opponents of released time programs were quick to seize the opening thus afforded as evidenced by the litigation in the McCollum and Zorach cases. And even before the Everson case reached it, the Supreme Court, thanks almost entirely to the efforts of Jehovah's Witnesses, had been engaged at length with the task of defining the dimensions of religious freedom as secured …

Wills - Religious Conditions In Restraint Of Marriage - Validity At Common Law And Effect Of Shelley V. Kraemer, Jack G. Armstrong S.Ed.

Michigan Law Review

Testator devised and bequeathed his property to his children, but with a proviso that the gift to any child who should marry a person not born in the Hebrew faith should lapse. Subsequent to the testator's death, the defendant married a woman who had been born a Roman Catholic. The other beneficiaries brought a proceeding to declare that the defendant had lost his rights under the will by reason of his marriage. The probate court granted a decree substantially as sought by the plaintiffs. On appeal, held, affirmed. This partial restraint on marriage is not so unreasonable as to …

Release Time And Religious Liberty: A Reply, Leo Pfeffer

Michigan Law Review

In his generous article-review of this writer's book, Church, State, and Freedom, Paul G. Kauper justified the decision of the United States Supreme Court in Zorach v. Clauson on the basis of its prior decision in Pierce v. Society of Sisters. In the Pierce case, it will be remembered, the Supreme Court invalidated an Oregon statute whose purpose it was to require attendance of all children at public schools. In Zorach v. Clauson, the Court upheld the validity of a New York statute that permitted public schools to release children for one hour weekly to receive religious …

Constitutional Law-Church And State-Distribution Of Gideon Bible In Public Schools, Raymond R. Trombadore S.Ed.

Michigan Law Review

The Gideons International, a non-profit religious corporation, applied by letter to the Board of Education of the Borough of Rutherford, New Jersey, for permission to distribute free copies of the Gideon Bible to pupils of the public schools of that community. By resolution passed at a regular meeting of the board, permission was granted for distribution to pupils whose parents requested copies of the Bible. Prior to distribution, suit for injunction was commenced by parents of Jewish and Catholic pupils to determine the validity of the distribution under the federal and New Jersey constitutions. The trial court found for defendants. …

Torpey: Judicial Doctrine Of Religious Rights In America, Michigan Law Review

Michigan Law Review

A Review of JUDICIAL DOCTRINE OF RELIGIOUS RIGHTS IN AMERICA. By William George Torpey.

Judgments--Criteria Of Finality Of State Court Decrees For The Purpose Of Federal Review, John M. Veale S.Ed.

Michigan Law Review

At the suit of the plaintiff, an incorporated religious organization, a permanent injunction issued from a lower state court enjoining the enforcement of certain ordinances of the defendant City of Los Angeles on the ground that they violated the plaintiff's religious liberty under the Constitutions of California and the United States. The case was appealed to the Supreme Court of California which sustained the ordinances as Constitutional and entered a judgment which provided " . . . the Judgment . . . in the above cause . . . is hereby reversed." On plaintiff's appeal, defendant questioned the jurisdiction of …