scholarly journals Special Solicitude: Religious Freedom at America’s Public Universities

Laws ◽  
2021 ◽  
Vol 10 (2) ◽  
pp. 30
Author(s):  
William E. Thro
Keyword(s):  
First Amendment ◽  
Religious Freedom ◽  
Public Universities ◽  
Religious Organizations ◽  
Equal Rights ◽  
Religious Groups ◽  
Religious Expression ◽  
University Campuses ◽  
The Supreme Court ◽  
The Government

Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” (Hosanna-Tabor, 565 U.S. at 189). This “special solicitude” guarantees religious freedom from the government in all aspects of society, but particularly on public university campuses. At a minimum, religious expression and religious organizations must have equal rights with secular expression and secular organizations. In some instances, religious expression and religious expression may have greater rights. The Court’s 2020 decisions in Espinoza v. Montana Department of Revenue, and Our Lady of Guadalupe School v. Morrissey-Berru, reinforce and expand the “special solicitude” of religion. Indeed, Espinoza and Our Lady have profound implications for student religious groups at America’s public campuses. This article examines religious freedom at America’s public universities. This article has three parts. First, it offers an overview of religious freedom prior to Espinoza and Our Lady. Second, it briefly discusses those two cases. Third, it explores the implications of those decisions on America’s public campuses.

scholarly journals Religious Group Autonomy: Further Reflections about what is at Stake

2006 ◽  
Vol 22 (1) ◽  
pp. 153-213 ◽  
Author(s):  
Kathleen A. Brady
Keyword(s):  
First Amendment ◽  
Government Regulation ◽  
Religious Practice ◽  
Religious Organizations ◽  
Religious Groups ◽  
The Supreme Court ◽  
Internal Operations ◽  
Difficult Cases ◽  
Do So ◽  
Special Protection

Does the First Amendment afford religious organizations special protection when government regulation interferes with their internal activities or affairs? Nearly all scholars would agree that relief is appropriate where government regulation is designed to impede a group's religious mission or otherwise unfairly discriminate against religion, but such cases are rare. The more difficult cases involve neutral, generally applicable laws that are not intended to burden the internal operations of religious groups but, nevertheless, have that effect. Does the First Amendment provide any relief in such situations and, if so, what is the justification for this protection?InEmployment Division v. Smith, the Supreme Court held that the First Amendment does not excuse individuals from compliance with neutral, generally applicable laws that burden religious practice. Legislatures may choose to grant relief in such situations, but if they choose not to do so, the First Amendment does not require any special accommodations or exemptions. However,Smithdid not address protections for religious groups, and, indeed, the Court has never directly addressed the scope of First Amendment protections where neutral government regulation interferes with the internal operations of religious organizations. Scholars who have debated this question have advocated a variety of positions.

scholarly journals Religious Neutrality in the Early Republic

2018 ◽  
Author(s):  
Jud Campbell
Keyword(s):  
Religious Freedom ◽  
Natural Right ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
Conscientious Objectors ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Government ◽  
Constitutional Meaning ◽  
Military Draft

Governmental neutrality is the heart of the modern Free Exercise Clause. Mindful of this core principle, which prevents the government from treating individuals differently because of their religious convictions, the Supreme Court held in Employment Division v. Smith that a neutral law can be constitutionally applied despite any incidental burdens it might impose on an individual�s exercise of religion. Conscientious objectors such as Quakers, for instance, do not have a constitutional right to be exempt from a military draft. Thus, neutrality now forms both the core and the outer limit of constitutionally guaranteed religious freedom. Judged according to founding-era views, however, this interpretation of the Free Exercise Clause is deeply problematic. Although historical scholarship has focused on the particular issue of religious exemptions, this Article takes a different approach by reexamining early debates about neutrality itself. These neglected sources demonstrate that modern cases invert the founding-era conception of religious freedom. For the Founders, religious freedom was primarily an unalienable natural right to practice religion�not a right that depended on whether a law was neutral. This evidence illuminates not only a significant transition in constitutional meaning since the Founding but also the extent to which modern priorities often color our understanding of the past.

scholarly journals THE SCOPE OF RELIGIOUS GROUP AUTONOMY: VARIETIES OF JUDICIAL EXAMINATION OF CHURCH EMPLOYMENT DECISIONS

Legal Theory ◽  
2019 ◽  
Vol 25 (4) ◽  
pp. 244-271
Author(s):  
Paul Billingham
Keyword(s):  
Human Rights ◽  
Religious Freedom ◽  
Religious Group ◽  
Religious Organizations ◽  
Religious Groups ◽  
Employment Decisions ◽  
European Court ◽  
Great Harm

ABSTRACTThe idea of “church autonomy” has risen to prominence in law and religion discourse in recent years. Defenders argue that church autonomy is essential to protecting religious freedom, while critics argue that it permits great harm. This heated dispute often obscures the fact that religious group autonomy is not all-or-nothing. Religious organizations can enjoy some autonomy without being free from all legal oversight. This article thus seeks to make progress in the debate by providing a taxonomy of kinds of judicial examination of religious organizations’ decisions—focusing on employment decisions—and normatively assessing each kind. I argue that religious groups should enjoy protection from certain kinds of examination, but other kinds are justifiable, and even required. My argument supports an approach similar to that seen in some recent European Court of Human Rights decisions, rather than the less discriminating approach of U.S. courts.

Religious Freedom and Unemployment Compensation Benefits

1995 ◽  
Vol 24 (3) ◽  
pp. 315-330
Author(s):  
Paul S. Greenlaw ◽  
John P. Kohl
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Religious Freedom ◽  
Unemployment Compensation ◽  
General Law ◽  
The Supreme Court ◽  
Religious Reasons

One key issue which has surrounded the payment of unemployment compensation benefits has been whether states could deny payment of such benefits to individuals who were out of Work for religious reasons. This presented a classic clash between state denial and First Amendment religious protections. In all such confrontations from 1963 until 1990 the Supreme Court sided with the claimant, but reversed itself in that year in Oregon v. Smith. This reversal triggered off the introduction of two House Bills calling for concepts to be enacted into general law which would be congruent with the earlier Supreme Court compensation decisions.

The Religion Clauses

2020 ◽  
Author(s):  
Erwin Chemerinsky ◽  
Howard Gillman
Keyword(s):  
First Amendment ◽  
Church And State ◽  
Religious Involvement ◽  
Government Support ◽  
Pluralistic Society ◽  
Religious People ◽  
Legal Obligations ◽  
The Supreme Court ◽  
The Government ◽  
The Relationship

The relationship between the government and religion is deeply divisive. With the recent changes in the composition of the Supreme Court, the First Amendment law concerning religion is likely to change dramatically in the years ahead. The Court can be expected to reject the idea of a wall separating church and state and permit much more religious involvement in government and government support for religion. The Court is also likely to expand the rights of religious people to ignore legal obligations that others have to follow, such laws that require the provision of health care benefits to employees and prohibit businesses from discriminating against people because of their sexual orientation. This book argues for the opposite and the need for separating church and state. After carefully explaining all the major approaches to the meaning of the Constitution’s Religion Clauses, the book argues that the best approaches are for the government to be strictly secular and for there to be no special exemptions for religious people from neutral and general laws that others must obey. The book argues that this separationist approach is most consistent with the concerns of the Founders who drafted the Constitution and with the needs of a religiously pluralistic society in the 21st century.

Dissent in the American Colonies before the First Amendment

2018 ◽  
Author(s):  
Catherine A. Brekus
Keyword(s):  
First Amendment ◽  
Religious Freedom ◽  
Church And State ◽  
Great Awakening ◽  
Early America ◽  
Religious Groups ◽  
Freedom Of Conscience ◽  
Religious Traditions ◽  
American Colonies ◽  
The Enlightenment

Many of the early migrants to the American colonies came from Dissenting backgrounds. There were many reasons why it was difficult to enforce religious uniformity across the Atlantic, including the diversity of religious traditions and the rise of the Enlightenment, particularly Locke’s emphasis on the sanctity of conscience. However, the role played by Presbyterians, Baptists, and Quakers in arguing for freedom of conscience needs to be acknowledged as well. Their pressure to create a formal separation of Church and state was vital. The 1689 Toleration Act and the revivals of the Great Awakening undermined the principle of church establishment in early America and led to divisions between different religious groups. In 1789, Dissenters contributed to the passage of the First Amendment, which guaranteed religious freedom and prohibited the establishment of a national church.

Thomas Jefferson, Religious Freedom, and the Supreme Court

1998 ◽  
Vol 67 (4) ◽  
pp. 682-694 ◽  
Author(s):  
Edwin S. Gaustad
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Second Life ◽  
Religious Freedom ◽  
The United States ◽  
Legal Framework ◽  
Thomas Jefferson ◽  
Court Decisions ◽  
James Madison ◽  
The Supreme Court

Most American scholars are reasonably well aware of the contributions of Thomas Jefferson (and his younger colleague, James Madison) to the establishment of the legal framework for religious freedom in the United States. Perhaps many are less aware of Jefferson's “second life” in the Supreme Court's several encounters with Jefferson and with the religion clauses of the First Amendment. This article will, first, review briefly Jefferson's lifelong commitment to religious liberty, which he regarded as the foundation of all liberties. Second, attention will be given to Supreme Court decisions in this troubled arena, with some comment on Jefferson's continued relevance—to use a tame and tired word—within the contemporary American scene.

Architectural Design Controls on Places of Worship in Australia: State Encroachment on Religious Expression and Exercise

2014 ◽  
Vol 9 (1) ◽  
pp. 60-92
Author(s):  
Noel G. Villaroman
Keyword(s):  
Architectural Design ◽  
Religious Freedom ◽  
Religious Communities ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Religious Groups ◽  
Religious Expression ◽  
International Human Rights ◽  
Constituent Element ◽  
The Right

Abstract This article analyses the ramifications to the right to religious freedom when the design of proposed places of worship is subjected to architectural design controls imposed by Australian planning authorities. First, such design controls can impinge on the freedom of religious expression—that is, the ability of religious communities to express their beliefs through their built structures. Such expression of beliefs may be vital to their prescribed manner of worship, observance, practice or teaching. Second, they can pose a physical obstacle to a religious group’s freedom of religious exercise—that is, their actual conduct of rituals, ceremonies and other kinds of worship. It is argued that the rigid application of design controls hinders the ability of religious groups in Australia to fully exercise their right to establish and maintain places of worship which is a constituent element of the right to religious freedom as guaranteed in international human rights law.

Defining Government Speech: Recent Approaches and the Germaneness Principle

2005 ◽  
Vol 82 (2) ◽  
pp. 398-415 ◽  
Author(s):  
Edward L. Carter
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Social Issues ◽  
Federal Courts ◽  
Private Speech ◽  
The Supreme Court ◽  
The Face ◽  
The Government ◽  
The U.S

In the last decade, the U.S. Supreme Court and lower federal courts have fashioned the -principle that the First Amendment does not limit the government's ability to determine the content of its own messages. Yet the Supreme Court has not defined what is meant by “government speech.” Defined broadly, it may encompass viewpoint-based messages on controversial social issues, privately funded advocacy on behalf of certain industries, and official endorsement of certain ideologies. In the face of this uncertainty, and confronted with numerous recent cases in which the government asserts its right to expression, the U.S. courts of appeal have devised three major approaches to distinguishing government speech from private speech. The Supreme Court touched on aspects of these approaches in an important 2005 opinion, yet significant questions remain about the definitional contours of the Court's developing government speech doctrine.

The judicialization of religious freedom: Variations on a theme

2021 ◽  
pp. 003776862110210
Author(s):  
James T Richardson
Keyword(s):  
United States ◽  
Religious Freedom ◽  
The United States ◽  
Sociology Of Law ◽  
Legal Systems ◽  
Religious Groups ◽  
European Court ◽  
The Supreme Court ◽  
Recent Developments ◽  
Variations On A Theme

This article discusses places and historical circumstances where religious freedom is generally protected by governments, including their judicial systems, and contrasts this with examples where such is not the case. Societal conditions contributing to religious freedom derived from theorizing on the ‘sociology of religious freedom’ are discussed, focusing on the characteristics of legal systems. Included is an application of sociology of law theories concerning how minority religious groups sometimes prevail in legal battles, followed by discussion of ‘judicialization of religious freedom’ concept. International legal systems and organizations that promote religious freedom are briefly described before discussing recent developments in the United States involving conflicts between the Supreme Court and Congress as well as the European Court of Human Rights (ECtHR), with its generally strong record concerning religious freedom. Russia and China, where religious freedom is severely limited or virtually nonexistent, demonstrate conditions not conducive to religious freedom, causing minority faiths to suffer severe consequences.

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