1985 Survey of Trends and Developments on Religious Liberty in the Courts

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\u27s decision is recorded. No editorial comment on the merits of these cases is intended

Review Essay: Charity for the Autonomous Self

Review essay for Charity Law and the Liberal State , by Matthew Harding and Religion, Charity and Human Rights , by Kerry O\u27Halloran

1993 Survey of Trends and Developments on Religious Liberty in the Courts

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

A Post-Obergefell America: Is a Season of Legal and Civic Strife Inevitable?

Obergefell v. Hodges did not extend the rigor of the Equal Protection Clause to sexual orientation as a protected class. The case is about the right to marry by obtaining a license from the state, not a right to be free of discrimination on the basis of sexual orientation. The Court\u27s rhetoric, however, will boost officials eager to take the next step for sexual equality. Not only did Obergefell speak of gays and lesbians as a class and wrote empathetically about them, but in dicta twice said that being gay or lesbian is an immutable characteristic. Accordingly, it can be expected that a few lower court judges - ones liberally inclined - will declare sexual orientation a suspect class under the Equal Protection Clause. True, the Court in Obergefell was intentional in not taking this step. But, from experience, we should assume that a few jurists will be unable to restrain themselves and will take the step not taken in Obergefell. Are the new marital rights in Obergefell necessarily in conflict with religious liberty? The civil law can protect the right of same-sex couples to marry while at the same time safeguard the right of religious person and organizations not to recognize these marriages. This will entail, not moral agreement or even mutual civility, but a commitment to the principle that neither claimant should enlist the power of the state to get the other to renounce their core beliefs or to act contrary to them. Gay and lesbian groups, however, insist that reform not stop with respectful treatment by the government. In important private transactions, such as employment, housing, commerce, and education, both religious and gay claimants want not to be judged adversely on account of their core self-identity, religious, in one instance, homosexual, in the other. Our society has responded by enacting laws to regulate these important transactions in the private sector. The statutes, of course, are known as Civil Rights Acts requiring nondiscrimination in regard to certain historically oppressed classes. We now come to the push to add sexual orientation to our nation\u27s venerable civil rights laws. As representative bodies consider doing so, what is to be done when the protection of sexual orientation conflicts with religion freedom? Both should be seen as legitimate rights-claims, and society\u27s task is to balance the two with the aim that both rights be harmonized where possible so that both are substantially realized. This framing avoids the bias that it is the religious claimant who is asking for a special exemption from the prevailing standard of equality that is binding on everyone else. The religious are not asking to be elevated above the common good, and it is prejudice to so presume. The religious claimants are asking only that their claim to liberty be weighed on its merits over against the liberty claim asserted by gays and lesbians

Constitutional Gravity: A Unitary Theory of Alternative Dispute Resolution and Public Civil Justice

It is often said that America\u27s founding was an experiment in government. Certainly few features of the American constitutional settlement left more to future chance--and were more of a break with existing European patterns--than the Establishment Clause set out in the First Amendment. The new Republic sought to rely on transcendent principles to justify its unpre-cedented advancements in human liberty. Concurrently, the Founders reject ed any official or fixed formulation of these principles, for no public credo was to be established by law. So it is more than just a little ironic that the nation\u27s most cherished human rights depend upon the continued private faith of innumerable Americans in creeds and confessions that themselves cannot be officially adopted by the Republic, lest the adoption run afoul of the prohibition on laws respecting an establishment of religion. Yet, coming full circle, it is this “no-establishment principle” that allows voluntary religion to flourish, which in turn nurtures belief in God-endowed rights. The resulting juggling act is what Dr. Os Guinness aptly describes as the still “undecided experiment in freedom, a gravity-defying gamble that stands or falls on the dynamism and endurance of (the Republic\u27s) unofficial faiths.

Play in the Joints Between the Religion Clauses\u27 and Other Supreme Court Catachreses

Consistent with its fumbling of late when dealing with cases involving religion, the U.S. Supreme Court has taken to reciting the metaphor of play in the joints between the Religion Clauses. This manner of framing the issue before the Court presumes that the Free Exercise and Establishment Clauses run in opposing directions, and indeed will often conflict. It then becomes the Court\u27s task, as it sees it, to determine if the law in question falls safely in the narrows where there is space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause. The conception that the free-exercise and no-establishment texts are in frequent tension, and at times are in outright war with one another, is quite impossible. Each substantive clause in the first eight amendments to the Bill of Rights was designed to anticipate and negate the assumption of certain powers by the national government - a government already understood to be one of limited, enumerated powers. Thus, for example, the free-speech clause further limited national power and the free-press clause did so as well. These two negatives on power - speech and press - can overlap and thus reinforce one another but they cannot conflict. Simply put, it is logically impossible for two negations of a government\u27s delegated power to conflict. Similarly, the free-exercise provision further restricted the nation\u27s powers and no-establishment did likewise. These two negatives can overlap and thereby doubly deny the field of permissible governmental action, but they cannot conflict. To be sure, each clause in its own way works to protect religious freedom. And when circumstances are such that the scope of the clauses overlap, they necessarily complement rather than conflict with each other. However, the Court\u27s imagining these two negations on governmental power as frequently clashing is at the conceptual level simply not possible

Taxpayer Standing From Flast to Hein

This essay plays off a critique by Professor Maya Manian of an article where I discussed the decision in Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007) (plurality opinion). While Professor Manian was concerned about how the result in Hein would lead to under enforcement of church-state separation, my article had utilized Hein, and more generally the law of taxpayer standing beginning with Flast v. Cohen (1968), to look beyond the question of aid to religion. Rather, I began by showing that the only cases in which the Court had announced a “generalized grievance” and thereby denied standing were when the cases alleged a structural violation of the Constitution as opposed to stating rights-based claims. Taxpayer claims allege a structural violation, thus they are dismissed as “generalized grievances”. Since Flast, however, the Court has made one exception: where the taxpayer claim concerns an appropriation said to violate the Establishment Clause. It follows that the Court is viewing the Establishment Clause as a structural restraint; namely, the separation of church and state is about keeping in right order these two centers of authority. That is why it can be said that the Establishment Clause is about policing the boundary between government and organized religion. The Court responded to that in Flast by making an exception to the rule against taxpayer standing. In Hein, the Roberts Court, by a vote of 7-2, continued to adhere to the presupposition that the Establishment Clause is structural in nature