Constitutional Protection for Conversations between Therapists and Clients

People have long perceived a connection between mental and even physical illness and spiritual anguish. Yet, modem culture tends to view both types of illness from an increasingly medical perspective, seeking a genetic or environmental explanation. In most cases, this medical model is probably the best approach, even if it is imperfect. First, the purely medical explanation may be accurate. Second, even if it is not accurate, treating the symptoms of a disease with a spiritual source is probably far easier than treating the source itself. Ultimately, however, we must take note that disease is often not the result of genetics or environment in the scientific sense

Some Realistic Thinking about Secular Effects

Notwithstanding complaints about incoherence in Establishment Clause doctrine, courts by and large administer the Clause responsibly. They do so by mediating between a number of powerful considerations, none of which can ever be entirely disregarded. These considerations include, but are not limited to, separation of church and state, the value of religiosity, the imperative of affording equal treatment to religious and similarly situated nonreligious entities, and the proper role of courts in a democratic political system. This is not to say that courts cannot overstep their bounds and provoke an adverse reaction from other powerful elements within the polity. It is only to say that courts, being sensitive to important political considerations, tend to avoid the kind of provocation that would undermine their role in the political system. In Part II of this article, I briefly summarize the apparent incoherence of Establishment Clause doctrine. In particular, I note that the various rules of nonestablishment are logically irreconcilable and tend to undermine the significance of the Free Exercise Clause, itself part of the Constitution. I then offer four possible explanations for this incoherence, the first two of which are based on indirect arguments and the second two of which are based on direct arguments. First, I suggest that any rule, such as the Establishment Clause, that contains the seeds of incoherence and that was originally intended to apply in limited circumstances may well appear profoundly incoherent when applied on a massive scale. Second, I observe that the decision by most nations of the world not to disestablish religion may be circumstantial evidence of the difficulty of the task. Third, I argue that any government that expects to act rationally in all instances must predicate its actions on some conception of the good life, thereby implicating establishment. Finally, I note that people cannot subsist as a matter of psychology without religion of some sort; therefore, positive government must make religious choices in order to function. These last two arguments partake of the republican approach to lawmaking, which expects government and citizenry to support each other in fostering individual and collective virtue. In Part III, I argue that courts nevertheless make sense of the Establishment Clause by mediating between such logically irreconcilable values as separation of church and state and republicanism. To help illustrate this point, I use the arguments set forth by James Boyd White in his monograph When Words Lose Their Meaning. In one chapter of this work, White described a rhetorical community in which players addressed each other by reference to a set of important considerations, remembering always to include each consideration at some level in their argument. As White noted, if any player in this community dared to eliminate one consideration from the mix, as one did, that player risked outlawry and destruction at the hands of the others. I argue that the same risks apply to Establishment Clause jurisprudence. If the courts systematically ignored an important consideration underlying the Clause, such as separation of church and state, the polity would react strongly and somehow force the courts to rectify the error. I then list some powerful considerations that inform Establishment Clause doctrine. In Part IV, I bring my observations to bear on a specific rule promulgated pursuant to the Establishment Clause. In particular, I note that the prevailing test for implementing the Establishment Clause, the so-called Lemon test, calls for an empirical analysis of the effect of legislation. Specifically, the test asks whether the primary effect of a law under review is to promote or inhibit religion. I then note that the Supreme Court typically honors this rule in the breach by expressly disavowing any willingness to quantify effects. In light of my earlier analysis, however, I conclude that the Supreme Court should not engage in an overly technical measurement of a law\u27s effect, but instead should take the measure of the law\u27s effect as appreciated by the polity in context in making its ultimate decision

The Constitutionality of Claiming Jail

Most pari-mutuel horse races in the United States are claiming races.In such races, a track official stipulates a claim price, and any authorized person may buy any horse that runs in that race at that price. This device discourages owners from running overqualified horses, which tends to ensure competitive fields. Say, for example, an official set a price of $50,000 for a race. An owner who ran a$60,000 horse in that race would stand a fair chance of picking up a good part of the purse, but he or she would also run a high risk of losing the horse to a claim for only five-sixths of its value. Meanwhile, an owner who ran a $40,000 horse in that same race would probably avoid a claim, but would also stand relatively little chance of picking up much of the purse, thereby wasting one of the horse’s starts. Claiming races thus cause fields to converge in quality, which tends to ensure competitive races. In fact, claiming races have this effect even if people are unaware of how they work, simply because people will see competitive races. If people believe races are competitive, they will bet more, which will generate more revenue for the track. Moreover, to the extent people do understand how claiming races work, they will be even more inclined to see them as competitive, because they will understand how the potential for claims monitors entries

Prior Restraint in Wartime

In this article for Bench & Bar Magazine (the Kentucky Bar Association\u27s magazine), Professor Paul E. Salamanca discusses the First Amendment during times of war or conflict

The Role of Religion in Public Life and Official Pressure to Participate in Alcoholics Anonymous

If religion is an innate aspect of the human experience, it should not be surprising that Alcoholics Anonymous (A.A.), a widely known and arguably religious support group for problem drinkers, has become a common and effective means of combating alcoholism. Also, it should not be surprising that probation officers, parole officers, judges, bar overseers, wardens, and myriad others exercising state authority routinely push individuals toward A.A. Arguably, however, official referral of problem drinkers to A.A. violates current interpretations of the Establishment Clause because of the quasi-religious nature of the program. Although separationism helps both church and state, our Constitution does, and should, permit some dialogue between the two, not in the sense of permanent, open-ended connections, but in the sense of minute, almost case-specific accommodations that reflect the close fit between human nature and religion. To support this argument, I point out in Part II of this Article that a variety of somewhat inconsistent sentiments underlay the Religion Clauses at the time of their adoption and that one of these sentiments was a desire to protect authentic, private religious growth, with or without officially established religion. Although this may not be apparent from modem interpretation of the Establishment Clause, it follows readily from the fact that many of the people who originally supported the First Amendment also supported established religions in their home states. The Establishment Clause only prevented Congress from establishing a religion. Given this predicate, an interpretation is faithful to much, if not most, of the original intent of the Clauses if it preserves the freedom of the individual to grow along authentic religious lines, irrespective of the state\u27s position on religion. A contrary interpretation would have to ignore much of that original intent. In this Part, I also note that the history of the United States—especially the early history—contains abundant examples of nondenominational “establishments” by the federal government, as well as both nondenominational and overtly denominational establishments by the states. This, I note, lends further support to the argument that the Establishment Clause did not originally focus upon strict separation. In Part III, I discuss modem Establishment Clause doctrine, focusing on the formal, separationist dictum of Everson v. Board of Education of Ewing and the relatively formalist, three-part test of Lemon v. Kurtzman, under which a law is unconstitutional if its purpose or primary effect is to promote or inhibit religion or if it fosters excessive entanglements between church and state. I argue in this Part that Lemon, Everson, and similar decisions have not succeeded in resolving the ambiguity created by the founders. In fact, as I argue in this Part, the Supreme Court\u27s failure to produce and to adhere to a coherent separationist interpretation of the Establishment Clause—or any formalist interpretation of that provision—demonstrates the deficiency of such rules. In Part IV, I discuss with approval some of the contextual approaches to the Establishment Clause that have been advocated by Justices O\u27Connor and Kennedy and by such commentators as Alan Schwarz and Michael McConnell. Drawing on nonlegal sources, I also suggest in this Part that, as a psychological and theological matter, formal separationist rules may compromise important principles of religious freedom and disserve at least some portions of the populace. I conclude in this Part that the Establishment Clause is best implemented by a contextual approach to the proper relationship between church and state and that a law should be deemed to violate the Establishment Clause only if it interferes with authentic religious development or if it actually constitutes sponsorship of a denomination. After making this claim, I then discuss A.A. in Part V, arguing that, although it sufficiently resembles a religion to trigger the Establishment Clause, the government ought to be able to incorporate A.A. into its activities, albeit with some limitations, without running afoul of the Constitution. I then apply my analysis concerning A.A. to several court decisions in which the issue has been presented

Video Games as a Protected Form of Expression

Video games, like motion pictures, failed to qualify for First Amendment protection until well after they emerged as a medium. Today, a number of courts have held that such games constitute a form of expression and do not fall into any recognized category of unprotected speech. Nevertheless, a number of commentators have called for limited constitutional protection for video games, predicating their arguments on a variety of grounds, including the alleged deleterious effects of such games on children. This Article responds to these commentators and defends recent decisions extending protection to video games

\u3cem\u3eQuo Vadis\u3c/em\u3e: The Continuing Metamorphosis of the Establishment Clause toward Realistic Substantive Neutrality

For years, the rhetoric of substantive neutrality has dominated interpretation of the Establishment Clause. Under this approach, courts and commentators purport to ask whether a public policy under scrutiny is likely to affect religious choices in an unacceptable way. In fact, so broadly has this approach been taken that both separationists and accommodationists resort to it freely, although with radically differing perceptions as to when policy becomes unacceptable. Arguably, however, adherents to this approach have paid insufficient attention to religious behavior per se. Had they paid sufficient attention to this phenomenon, they would have been forced to acknowledge that little of what government does actually affects people\u27s religious beliefs. Moreover, they would have been forced to recognize that vindication of basic human rights will operate as a bar to religious persecution long before such persecution is likely to affect religious choices. In fact, I would argue that a desire to vindicate such rights far more fully accounts for the United States Supreme Court\u27s approach to the Establishment Clause in the mid-twentieth century than any real concern for substantive neutrality

\u3cem\u3eSnyder v. Phelps\u3c/em\u3e: A Hard Case That Did Not Make Bad Law

In Snyder v. Phelps, the Court stood by the First Amendment in hard times. A religious group conducted a protest some 1,000 feet from a fallen marine\u27s funeral, holding such pickets as “God Hates the USA,” “Thank God for Dead Soldiers,” and “You\u27re Going to Hell.” Despite the empathy that virtually anyone would feel for the marine\u27s grieving father, the Court held by a vote of eight to one that his action for intentional infliction of emotional distress and intrusion upon seclusion could not survive, owing largely to the public nature of the issues the protesters had raised. “Hard cases,” a British judge once wrote, “are apt to introduce bad law.”\u27 “Great cases,” Justice Holmes elaborated, “like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” The “accident of immediate overwhelming interest” at work in Snyder v. Phelps was the very real and compelling humanitarian claim presented by that grieving father, Albert Snyder. This article is a brief description and largely positive critique of Snyder

Readings in Parallel Judiciaries

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