Religious Liberty & Common Law: Free Exercise Exemptions & American Courts

Polity ◽  
1993 ◽  
Vol 26 (1) ◽  
pp. 1-24
Author(s):  
James R. Stoner,
Keyword(s):  
Common Law ◽  
Religious Liberty ◽  
Free Exercise

scholarly journals Telescoping and Collectivizing Religious Free Exercise Rights

2017 ◽  
Author(s):  
Henry L. Chambers
Keyword(s):  
Supreme Court ◽  
Religious Beliefs ◽  
Religious Liberty ◽  
Court Cases ◽  
Free Exercise

If courts are willing to expand religious liberty so that people may be allowed to choose-on the basis of their own religious beliefs-whether certain laws will apply to non-religious entities they create, those courts should take that step very carefully. This Paper explores the issue and pro- ceeds as follows. Part I discusses three recent Supreme Court cases that il- luminate the telescoping and the collectivization of free exercise rights. Part II considers problems that accompany telescoping and collectivizing free exercise rights. Part III suggests how courts should critically evaluate the telescoping and collectivizing of free exercise rights. This Paper con- cludes with a warning about the danger that can accompany insufficient consideration of the telescoping and collectivizing of free exercise rights through entities.

NO TEARS FOR CREON

Legal Theory ◽  
2009 ◽  
Vol 15 (4) ◽  
pp. 245-266
Author(s):  
Marc O. DeGirolami
Keyword(s):  
Religious Liberty ◽  
The Other ◽  
Equal Rights ◽  
Free Exercise ◽  
Comprehensive Theory ◽  
Liberty Of Conscience ◽  
Equal Respect ◽  
The Government ◽  
Normative Status

This essay critiques Professor Martha Nussbaum's book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (2008). Nussbaum's thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of equal respect—that “[a]ll citizens have equal rights and deserve equal respect from the government under which they live.” Nussbaum insists that equal respect pervades the tradition and that all other values of religious liberty are subordinate to it. She examines various free-exercise and establishment issues in light of this principle, concluding that the tradition of religious equality is under threat and calling for renewed vigilance in its defense. This essay criticizes Nussbaum's elevation of the principle of equal respect to supreme normative status. It claims that Nussbaum's single-minded focus on equal respect distorts and misunderstands the conflicts actually at issue in many religious liberty disputes. The essay focuses specifically on the inadequacies of her assessment of two prominent religious liberty cases, one in the free exercise and the other in the established context. This essay concludes that there are reasons for deep skepticism about Nussbaum's approach as a comprehensive theory of the religion clauses.

Secularism and US Religion Jurisprudence

2017 ◽  
Author(s):  
Caroline Corbin
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Church And State ◽  
The United States ◽  
The State ◽  
Religious Liberty ◽  
Establishment Clause ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
Constitutional Jurisprudence

Religious surveys are finding greater percentages of Americans who self-identify as secular. At the same time, religious exemptions under the Free Exercise Clause have become more difficult to obtain. However, religion jurisprudence in the United States has not become more secular for two reasons. First, this greater unwillingness to grant constitutional exemptions reflects a shift in constitutional jurisprudence from “separationism” to “neutrality.” Rather than building a wall between church and state, the Establishment Clause is now interpreted to impose fewer restraints on state-sponsored religion. Second, statutes like the federal Religious Freedom Restoration Act and its state counterparts have not only reestablished separationist era levels of protection for religious liberty but increased them. The result is a religion jurisprudence where religion is accommodated more than ever, while the state has more leeway to advance religion. This combination has unfortunate consequences for both secular people and core secular values, such as antidiscrimination.

George Washington on Religious Liberty

2003 ◽  
Vol 65 (1) ◽  
pp. 11-34 ◽  
Author(s):  
Vincent Phillip Muñoz
Keyword(s):  
Military Service ◽  
Religious Liberty ◽  
Government Support ◽  
Establishment Clause ◽  
George Washington ◽  
Free Exercise ◽  
Founding Fathers ◽  
Narrow View ◽  
The Right ◽  
The Sacrifice

Despite the Supreme Court's repeated invocations of America's Founding Fathers for First Amendment religion jurisprudence, George Washington's political thought regarding religious freedom has received almost no scholarly attention. This is unfortunate, for Washington's words and actions speak to contemporary Establishment Clause and Free Exercise issues. Washington, moreover, offers an alternative to Jefferson's and Madison's approach to church-state matters. The scholarly exclusion of Washington thus has led to a narrow view of the Founders' thought on religious liberty. This article sets forth Washington's understanding of the right to religious liberty. It pays particular attention to Washington's disagreement with Madison on the propriety of government support of religion. It also draws attention to the limits Washington placed on an individual's right to religious free exercise by focusing on how Washington dealt with Quaker claims for religious exemptions from military service.Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved. —G. Washington, Letter submitting the proposed constitution to the President of Congress 17 September 1787

scholarly journals CHARITY FOR THE AUTONOMOUS SELF

2017 ◽  
Vol 32 (1) ◽  
pp. 185-196
Author(s):  
Carl H. Esbeck
Keyword(s):  
United States ◽  
Religious Freedom ◽  
Common Law ◽  
Basic Structure ◽  
The United States ◽  
Religious Liberty ◽  
Marriage Equality ◽  
The World ◽  
The Future ◽  
The Law

Australia adopted the Charities Act of 2013, consolidating and restating the country's governing statutes on the registration and qualification of charities, but leaving to the future any reconciliation between faith-related charities claiming religious liberty and others demanding marriage equality and no discrimination based on sexuality. Concurrent to this development, but with an eye to the direction of charity law in common law systems throughout the world, major works have come to us from two Australian scholars. In this review I offer much about these two monographs, but the discussion that immediately follows concerns the law of charitable nonprofits in the United States, the basic structure of that law, and current issues implicating religious freedom.

Freedom of Religion

2008 ◽  
Vol 21 (2) ◽  
pp. 279-319 ◽  
Author(s):  
Avihay Dorfman
Keyword(s):  
Lived Experience ◽  
General Principle ◽  
Religious Liberty ◽  
Self Determination ◽  
Freedom Of Religion ◽  
Democratic Process ◽  
Free Exercise ◽  
Liberty Of Conscience ◽  
Political Legitimation ◽  
Proper Account

Why it is that the principle of freedom of religion, rather than a more general principle such as liberty or liberty of conscience, figures so prominently in our lived experience and, in particular, in the constitutional commitment to the free exercise of religion? The Paper argues, negatively, that the most prominent answers offered thus far fall short; and positively, that the principle of freedom of religion arises out of a thicker understanding of the much neglected relationship between religious liberty and democracy. Indeed, a proper account of the legitimacy of the democratic process. I argue, dissolves the mystery surrounding freedom of religion, and thus allows for an adequate justification of this principle. The thesis of this paper is that freedom of religion is a remedy that redresses the (warranted) exclusion of certain religious arguments from the democratic process. The redress is grounded in a republican concern for political self-determination while exclusion is prescribed by a liberal ideal of political legitimation.

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