28 results
Dedication
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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3 - Religious Influences and Expressions in Law and Government
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 05 October 2015
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- 06 October 2015, pp 111-148
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Summary
Introduction
Religion appears to be a pervasive, perhaps indelible dimension of human existence. Approximately 87 percent of the world's population has been characterized as religiously adherent, and in the United States, the percentage of self-identified religious individuals is roughly 89 percent, over 93 percent of whom are affiliated with specific religious traditions. Nearly two-thirds of Americans consider religion to be an important part of their daily lives. From a social science standpoint, it can be said that human beings appear consistently to contemplate questions and to form answers and belief systems regarding matters that have historically been deemed religious in nature. There is evidence as well that underlying or influencing this pattern of human activity are distinct biological factors. Even when traditional religion is removed from the picture, human beings nevertheless seem driven to embrace alternative frameworks of belief that exhibit characteristics of transcendence or that seek to answer the so-called ultimate questions of human existence. This might explain why totalitarian political regimes, in an effort to shape the moral and conceptual frameworks of their citizens, attempt not simply to suppress conventional religious belief systems but also to supplant those systems with ideological frameworks that purport to supply their citizens with statist worldviews.
In the United States, religion has been part of the nation's narrative since its beginnings. To be sure, “[t]he idea that God has directed the history of the United States has become a commonplace in American life, a way of imagining America's purpose and history that seems so thoroughly familiar that one can easily overlook its essential oddness.” When the rebellious American colonies prevailed over the British, given the dim prospect of victory at the Revolution's outset, the notion that Providence looked favorably on the new nation predictably served as an explanatory framework. When the country was divided during the Civil War, many in both the Confederacy and the Union – President Lincoln prominently among them – viewed the conflict as well as the outcome in religious, even apocalyptic terms. Imbued with religious significance, to be sure, have been many, if not most, of the nation's major events or developments: westward expansion across the continent, World War I,World War II, the cold war, and the civil rights movement of the 1950s and 1960s, to mention just a few prominent examples.
5 - The Free Exercise Clause
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 06 October 2015, pp 210-288
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Introduction and Note on Smith and Its Aftermath
Central to the liberty of Americans is, and has long been, freedom of religion. This is true historically, given the country's tradition of religious dissent and tolerance since at least the eighteenth century. It is true demographically, given the diversity of faiths that have emerged and today coexist across the national landscape. It is true aspirationally, as manifest in the “Four Freedoms” of both the 1939 New York World's Fair and President Franklin D. Roosevelt's 1941 address to Congress. And it is true constitutionally, as embodied in the First Amendment, which protects religious freedom both directly, by barring the prohibition of its free exercise, and indirectly, by barring laws respecting an establishment of religion.
The first of these constitutional protections, the Free Exercise Clause, is the focus of this chapter; the latter, the Establishment Clause, is addressed in Chapter 4. The Free Exercise Clause, which provides that “Congress shall make no law … prohibiting the free exercise [of religion],” protects both freedom of religious belief or profession and, as the text indicates, freedom of religious exercise or conduct. However, though it has often been said that religious belief is absolutely protected, case law and common sense dictate that religious exercise – defined by one court as “the robust putting into practice of a person's religious beliefs” – is protected only to a point. That point is effectively determined by a balancing of the respective interests of the free exercise claimant and of the government or of the public that it represents, where the precise balance or level of judicial scrutiny will vary based on the claimant's evidentiary showings.
This chapter presents an overview of this balancing methodology from the required components of a free exercise claim, to the ways in which the government may or must respond to such a claim, to the different levels of judicial scrutiny that have been recognized, as well as to the factors that can determine which level of scrutiny may apply. In addition, the chapter briefly addresses the forms of religious accommodation available under the Free Exercise Clause as well as the doctrines of religious institutional autonomy that are grounded, at least partly, in that provision.
Contents
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 06 October 2015, pp vii-xvi
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Appendix B - State Constitutional Provisions
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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Summary
Alabama
Ala. Const. preamble: We, the people of the State of Alabama, in order to establish justice, insure domestic tranquility, and secure the blessings of liberty to ourselves and our posterity, invoking the favor and guidance of Almighty God, do ordain and establish the following Constitution and form of government for the State of Alabama:
Ala. Const. art. I, § 3: That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry; that no religious test shall be required as a qualification to any office or public trust under this state; and that the civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles.
Ala. Const. art. I, § 3.01:
Section I. The amendment shall be known as and may be cited as the Alabama Religious Freedom Amendment.
Section II. The Legislature makes the following findings concerning religious freedom:
(1) The framers of the United States Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution, and the framers of the Constitution of Alabama of 1901, also recognizing this right, secured the protection of religious freedom in Article I, Section 3.
(2) Federal and state laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.
(3) Governments should not burden religious exercise without compelling justification.
(4) In Employment Division v. Smith, 494 U.S. 872 (1990), the United States Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion.
Appendix C - Selected Federal Statutes 910
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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10 U.S.C. § 774. Religious apparel: wearing while in uniform
(a) General Rule. – Except as provided under subsection (b), a member of the armed forces may wear an item of religious apparel while wearing the uniform of the member's armed force.
(b) Exceptions. – The Secretary concerned may prohibit the wearing of an item of religious apparel –
(1) in circumstances with respect to which the Secretary determines that the wearing of the item would interfere with the performance of the member's military duties; or
(2) if the Secretary determines, under regulations under subsection (c), that the item of apparel is not neat and conservative.
(c) Regulations. – The Secretary concerned shall prescribe regulations concerning the wearing of religious apparel by members of the armed forces under the Secretary's jurisdiction while the members are wearing the uniform. Such regulations shall be consistent with subsections (a) and (b).
(d) Religious Apparel Defined. – In this section, the term ‘‘religious apparel’’ means apparel the wearing of which is part of the observance of the religious faith practiced by the member.
11 U.S.C. § 548 [Religious Liberty and Charitable Donation Protection Act of 1998, Pub. L. No. 105–183, 112 Stat. 517 (June 19, 1998) (codified at 11 U.S.C. §§ 544, 546, 548, 707, 1325)]
Section 548. Fraudulent transfers and obligations:
(a)(1) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily–
(A) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted; or
(B) (i) received less than a reasonably equivalent value in exchange for such transfer or obligation; and
(ii) (I) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation;
8 - Church Property Disputes and Church Schisms
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 06 October 2015, pp 359-393
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Summary
The issues underlying church property disputes and church schisms are directly connected to the role of courts vis-à-vis religion. Central to this role is the notion that state and federal courts do not involve themselves in ecclesiastical disputes, but courts may address issues concerning civil or property rights as long as they need not resolve ecclesiastical issues in order to do so. This rule raises numerous questions, and several settled principles of law have arisen as a result, but different jurisdictions have sometimes interpreted these rules in different ways. For the most part, as will be seen herein, each question that arises seems to garner a majority approach and several minority approaches that are generally closely related to the majority approach. One of the first questions most jurisdictions ask in church property dispute and church schism cases is what kind of religious institution is involved? Is it hierarchical or congregational? If the former, what is its structure? If the latter, how does it govern itself? The next question that is often asked is whether the issue involved in the case requires the determination of ecclesiastical matters. If so, the courts generally find that they have no jurisdiction. If not, the analysis generally continues.
Church property disputes often involve church schisms, but property cases are frequently held to be addressable by the courts using either neutral principles of law or another acceptable method. Church schism cases that do not involve property can involve a variety of issues such as employment disputes, disputes over membership status,disputes over control of the church, and disputes over financial matters. This chapter will address the law applicable to church property disputes and that applicable to church schisms in separate sections. The law addressing church property disputes is frequently used in church schism cases, so we will first address church property disputes and then church schisms.
Church Property Disputes
The most recognized rule applicable to church property disputes comes from Watson v. Jones, decided by the U.S. Supreme Court in 1871. The Watson case involved a dispute over church property at the Walnut Street Presbyterian Church, located in Kentucky. The ultimate question was which of two factions claiming to have authority to control church property was entitled to exercise that authority.
7 - The Definition of Religion
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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The Current Lack of an Authoritative Definition
At most points in this book, it is essentially assumed that the belief system of a given claimant is in fact a “religion” within the meaning of the Free Exercise Clause or that the object of an alleged government establishment involves “religion” under the Establishment Clause. Much of the time, both for this book and for litigation, this turns out to be a fair and workable assumption because the belief systems at issue are often widely recognized as being religious. Occasionally, however, government officials are confronted with so novel or unconventional a belief system – typically as part of a religious freedom claim and disproportionately, it seems, in the prison context – that they must inquire whether or not the beliefs amount to a legally cognizable religion as a threshold matter. In the coming decades, as the diversity and idiosyncrasy of religious beliefs and practices in the United States continue to grow, such inquiries are likely only to increase.
As it turns out, “religion” appears to be one of the few key terms of the First Amendment, if not the only key term of that provision, that the contemporary Supreme Court has not authoritatively defined in a comprehensive or systematic manner. The most that the Court has said, in relatively dated cases of unknown or dubious precedential authority, is that religion involves a person's relationship to God or to “the ultimate mystery of the universe.” Conversely, the Court has explained that religion under the First Amendment does not encompass “purely secular considerations” or “philosophical and personal” beliefs such as those held by Henry David Thoreau, but this category of exclusion remains elusive as well.
Even among the multitude of other Article III judges past and present, only a modest number have ventured into this definitional abyss and yielded substantial (and sometimes quite different) definitions. To be sure, it is not uncommon for lower courts, when faced with an allegedly religious belief system that is unknown or extremely unusual, simply to assume that the beliefs are religious for sake of the litigation, particularly when the case is then resolved against the claimant on some other basis.
Index
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 06 October 2015, pp 937-982
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14 - Criminal Law and Process
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 06 October 2015, pp 634-702
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Summary
Introduction
“[T]he power to create and enforce a criminal code” is, in the U.S. Supreme Court's words, “[f]oremost among the prerogatives of sovereignty.” It enables a sovereign to proscribe or prescribe conduct in furtherance of community health, safety, welfare, or morals and then to prosecute violations of those mandates using the full complement of the state's coercive powers. To be sure, although governmental pervasiveness in the last century has perhaps blurred the line between regulation and criminalization, the latter nevertheless remains, conceptually at least, the paradigmatic expression of state authority.
As a practical matter, it is often the nature, extent, and basis of the punishment that distinguish criminal offenses from civil wrongs. Both transgressions, for example, can lead to minor or temporary incursions on liberty and, especially in the civil realm, to the confiscation of one's property. But criminal offenses also can lead to greater stigma, to significant secondary consequences (e.g., disenfranchisement), to more severe restrictions on one's basic liberties (e.g., incarceration), and even to the termination of one's life (e.g., capital punishment), which substantially explains the heightened evidentiary burden on the prosecution. Moreover, although both criminal punishment and civil liability are traditionally thought to have compensatory and deterrent functions, the former, unlike the latter, is often said to have incapacitative, rehabilitative, and retributive functions as well.
It is precisely the significance of the criminal legal system, as the fullest and most drastic expression of legitimate state authority, that often makes the relationship between this system and the religious realm historically rich, contemporarily important, and frequently controversial. This relationship can be approached and examined in a variety of ways. Broadly viewed, one might examine the historical or empirical correlations between religion and a sovereign's criminal jurisprudence or between religion and the prevention or occurrence of crime. One might also examine the potential complementarity between religion and the criminal law in the regulation of harmful conduct, or one might critique the criminal law from a particular religious perspective.
In this chapter, this relationship for the most part is presented topically. The overarching issue of the criminal law's application to religiously inspired conduct will first be examined both in general and with a specific focus on categories of crimes, from serious bodily harm to relatively minor offenses, as well as offenses against public morality or oneself.
13 - Torts
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 06 October 2015, pp 572-633
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Religious institutions and entities can be involved in tort cases just like other institutions and entities. Given constitutional considerations, however, there are some unique questions that arise when tort claims are brought against, or by, religious institutions or entities. These issues will be explored in this chapter in the context of the various tort causes of action that arise in religion contexts.
The sorts of tort claims that can arise when religious institutions and entities are involved include both intentional and negligence-based torts. These issues can arise from garden-variety tort claims such as a slip and fall on church property or from more serious issues such as sexual abuse by clergy. Some of the more common causes of action that arise, especially in clergy abuse cases, include negligent supervision, negligent hiring and retention, intentional infliction of emotional distress, negligent infliction of emotional distress, tortious breach of fiduciary duty, assault and battery (by the clergy member or other abuser), loss of consortium, and false imprisonment. As will be seen, these claims meet with varying levels of success.
Additionally, claims have been brought by or against religious entities for defamation, trespass, nuisance, invasion of privacy, conversion, negligence, and even products liability. Again, these claims have varying amounts of success depending on the facts of the cases and the jurisdictions in which they are filed. As you will see, one tort that is virtually never successful – at least not when characterized as such – is clergy malpractice.
Various factors can affect outcomes in these cases. Obviously, the variety of tort law concepts among jurisdictions is a major factor. Additionally, if a court must delve into ecclesiastical matters, the First Amendment generally will prevent it from doing so. Relatedly, the availability of neutral principles of law to resolve the claim may be relevant. Whether or not the victim is a member of the religious entity is also a key factor because it can have significant impact on whether constitutional norms are involved and to what degree.
12 - Land Use
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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This chapter addresses the variety of laws that affect real property used by religious organizations (and to a lesser degree individuals) for religious purposes. It starts with the most obvious form of land use control: zoning. After a brief description of earlier jurisprudential trends, attention turns to federal law: the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which governs the regulatory relationship between local governments and religious organizations. The chapter then moves from a consideration of zoning and RLUIPA to a host of other topics relevant to individuals and groups as they use their property for religious purposes: the law of nuisance and private restrictive covenants; laws relating to charity, sanctuary, and surveillance; laws against desecration of religious sites and disruption of religious services; historic preservation; and eminent domain. Note the special regard often given the house of worship as courts, legislatures, and agencies attempt to protect this preeminent locus of religious activity and symbol of religious pluralism while at the same time balancing other significant social, aesthetic, and economic considerations.
Zoning Religious Land Use: Twentieth-Century State and Federal Developments
1. Land Use Controls on Religious Properties
Religious exercise, even when focused on matters transcendent, occurs here and now in a physical space. Thus it is not surprising that religious groups worship and conduct nearly all their ancillary activities – education, pastoral work, service to society – on real property and usually on real property that they own; alternatively, they rent space or meet in private homes. Access to land and buildings is quite clearly a precondition to religious assembly and religious exercise. As one federal judge commented,
[p]laces of worship have in almost all religions been as integral to their religion as have Sunday School, preaching, hymn singing, prayer, and other forms of worship which we have traditionally recognized as the “exercise” of religion. Churches are the situs for the most sacred, traditional exercise of religion: baptisms, confirmations, marriages, funerals, sacramental services, ordinations, and rites of passage of all kinds.
[T]he place of worship is central to the first amendment concept of free exercise as essentially the only place of religious “assembly” and the central place for the expression of religious “speech.” Thus, when government agencies seek to encumber the use of buildings for religious worship, they are, in fact, impinging on speech, assembly, and religious exercise through the use of zoning ordinances.
16 - Public Education
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 06 October 2015, pp 746-787
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Summary
Historical Context: Education in the Colonies
Colonial Massachusetts gave public education a firm legal foundation in 1642 by ordering parents to ensure that their children were taught “to read and understand the principles of religion and the capital laws of the country.” As schooling became institutionalized throughout the colonies, teachers were widely required to be persons of “piety and good character,” a provision that was tantamount to a religious test for appointment. Formal education was vastly augmented by the vocational training, including reading and arithmetic (“cyphering”), provided by master craftsmen to their apprentices.
As the avalanche of church-state litigation in the twentieth and twenty-first centuries amply illustrates, education in both public and parochial schools has struggled to come to terms with the remnants of its early religious roots. A leading observer of the status of religion in American education has offered this summary:
God's place within the public schools of the United States has been debatable, and subject to controversy, for as long as there have been public schools. In colonial America, religion played a central role in the schools of every colony, but the understanding of religion differed substantially from colony to colony. With the coming of nationhood and the separation of church and state on the federal level, the public school was pressed into service as a new kind of national church, commissioned to create and carry the common culture and morality of the nation. Since citizens differed dramatically in their definitions of this culture and morality, and especially since newly arrived Catholics, newly freed African Americans, and newly conquered Native Americans all had still other ideas, the content of the nation's common creed – and especially the appropriateness of its more overtly religious dimensions – was a subject of fierce debate and continuing change throughout the nineteenth century.
By the end of that century, due as much to exhaustion as any thoughtful will, schools had dropped the more obviously religious – and generally Protestant Christian – trappings of the school faith, replacing them with a generic commitment to democracy reinforced by a set of patriotic symbols, including flags and flag salutes and the omnipresent pictures of George Washington and Abraham Lincoln. Some religious symbols – bible reading and prayer in a minority of states, Christmas carols and pious references in most communities – continued well into the twentieth century.
11 - Employment
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 06 October 2015, pp 451-503
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Summary
At the beginning of a new millennium, employment discrimination on the basis of religious affiliation remains a problem in the United States. Even though Europeans settled here to escape religious persecution, the Equal Employment Opportunity Commission (EEOC) reported that it had received 3,811 allegations of employment discrimination on the basis of religion in 2012. This figure accounted for 3.8 percent of the agency's total caseload for the fiscal year. Although this number is small in comparison with other categories, such as discrimination based on sex (30,356 allegations) or race (33,512 allegations), the allegations of religious discrimination in employment have doubled since 1997, the first year for which statistics are available on the agency's website. Of special concern is the increase in allegations of discrimination made by Muslims since the terrorist attacks of September 11, 2001.
Although a complete review of law regarding religion and U.S. employment would take multiple volumes, this chapter summarizes the history of and recent trends in two aspects of the law in this area. The first section of this chapter surveys laws and case precedent that protect working religious adherents who claim discrimination, harassment, or a failure to accommodate. Adherents now bring most of their claims under Title VII of the Civil Rights Act of 1964 or equivalent state fair employment practice statutes. However, isolated legislation, some arguably politically as well as religiously motivated, offers additional protections. Recently passed “refusal clauses,” also known as “conscience clauses,” relate to the sale of contraceptives or the provision of pregnancy-termination services. They highlight the importance of targeted and specific statutes. Burwell v. Hobby Lobby Stores, Inc. addresses whether for-profit, private employers enjoy the same protections afforded by the Religious Freedom Restoration Act of 1993 (RFRA) that religions may claim against governmental interference.
The second section of this chapter covers the protections for religious institutions that also operate as employers. The Supreme Court's 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. indicates that the legal debate concerning the separation of church and state remains lively – at least where religious employers operate. The future direction of Court interpretation of that precedent remains obscure. Some analysts suggest that the Court limited Hosanna-Tabor's reach, whereas others contend that its influence may be quite extensive. This chapter concludes with several observations about the evolution of religion and employment law.
Appendix A - Federal Constitutional Provisions
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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U.S. Const. art. I, § 7, cl. 2: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States…. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
U.S. Const. art. VI, cl. 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
U.S. Const. art. VII: The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the same.
done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.
U.S. Const. amend. I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. Const. amend. V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
17 - Religious Symbolism on Government Property
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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Introduction
Courts have repeatedly grappled with the issues raised when government displays religious symbols or religious symbols are displayed by others on government property. Cases involve a variety of religious symbols, for example, Ten Commandments displays, crèches (nativity scenes), Latin crosses,menorahs, and Christmas trees. The analysis in these cases has been the focus of a great deal of scholarly criticism. Most of that criticism is beyond the scope of this chapter. The goal of this chapter is to equip you with knowledge of the leading cases addressing religious symbolism on government property and the legal approaches courts have used, and are currently using, in these cases.
Religious Symbolism Cases
The U.S. Supreme Court has decided a number of cases involving the display of religious objects or symbols by government entities on public property. In Lynch v. Donnelly and in County of Allegheny v. ACLU, the Court addressed the display of nativity scenes – crèches – by government entities. County of Allegheny also involved the display of a large menorah next to an even larger Christmas tree accompanied by a sign saluting liberty.
In Stone v. Graham, the Court addressed a Kentucky statute that required a copy of the Ten Commandments to be placed on a wall in all public school classrooms in the state. More recently, in McCreary County v. ACLU of Kentucky, the Court struck down courthouse displays in two Kentucky counties that included the Ten Commandments, and in Van Orden v. Perry, the Court upheld the display of a Ten Commandments monument on the grounds of the Texas State Capitol. In Pleasant Grove v. Summum, the Court upheld a town's refusal to erect a monument reflecting the Seven Aphorisms of the Summum religion even though the town had a Ten Commandments monument on the same property. The Court addressed the issue as a government speech issue and did not address the possible – some would say probable – Establishment Clause violation in the case.
In Salazar v. Buono, the Court upheld a land transfer that enabled a Latin cross which had served as a war memorial to remain on land that had been public prior to the land transfer. Finally, in Capitol Square Review and Advisory Board v. Pinette, the Court addressed the placement of a large cross on government property that was a public forum.
1 - History and Introduction
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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Church-State Relations in the Colonies from Their Founding to the Declaration of Independence
1. Introduction
During the century and a half that passed between the first permanent English settlements in Virginia (1607) and Massachusetts (1620) and the signing of the Declaration of Independence, there were seismic changes in the political and religious characteristics of the colonies that became the thirteen original states of the Union. Although liberty proved to be the ultimate destination in both these arenas, the journeys were taken in fits and starts rather than smoothly, and the process of change took longer in the church-state relationships than in the political links between the colonies and England. Political liberty for the United States was presaged in 1776 by the Declaration of Independence and was recognized by Great Britain in 1783 in the Treaty of Paris and a second time in 1814 in the Treaty of Ghent, which ended the War of 1812 (sometimes called our “second war of independence”). Neither treaty dealt with religious issues. The Treaty of Paris, however, was dipped in religiosity: it was promulgated “[i]n the name of the Most Holy and Undivided Trinity,” credited “Divine Providence” with having disposed the two parties to “forget all past misunderstandings,” and is dated “in the year of our Lord” 1783.
The achievement of religious liberty in America, by contrast, was not declared or recognized by so crisp an event or document, and attainment of that goal proceeded separately in each of the colonies, unlike the achievement of political independence, which occurred for all the colonies at the national level. Moreover, disestablishment of the state church in Massachusetts did not occur until 1833, and as late as 1892, a unanimous Supreme Court quoted, seemingly with approval, the proposition that Christianity was part of the common law of Pennsylvania and, by implication, of the other states as well. As recently as 1961, Maryland urged (though without success) that the Supreme Court should uphold the validity of its antiquated constitutional provision requiring candidates for the post of notary public to declare their belief in the existence of God, and every year this provision spawns a sizable body of church-state lawsuits, as this work will demonstrate.
2 - Church and State in the Nineteenth Century
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 05 October 2015
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- 06 October 2015, pp 79-110
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Summary
Introduction
During the century and a half between the ratification of the First Amendment in 1791 and the Supreme Court's 1947 decision in the Everson case upholding the constitutionality of using public funds to finance the bus transportation of children attending church-sponsored schools, the Court rarely addressed the meaning of the Establishment and Free Exercise Clauses. Moreover, these early applications of the religion clauses affected no more than a small fraction of the nation's populace. For example, Terrett v. Taylor, decided in 1815, ruled that a Virginia law confiscating certain real estate owned by the Protestant Episcopal Church (in the course of its disestablishment) was unconstitutional, and Reynolds v. United States (1878) held that a Mormon's religious belief that polygamy was divinely inspired was not a valid defense to a federal prosecution for committing bigamy.
The paucity of Supreme Court litigation should not lead readers to infer that the nineteenth century was devoid of episodes requiring the religion clauses of the First Amendment to be interpreted. In fact, numerous church-state clashes were resolved by the executive and legislative branches of government at both the federal and state levels, as well by the state courts, and these collisions sometimes elicited implicit or explicit interpretations of the religion clauses that were no less important than formal judicial resolutions of the disputes would have been. This chapter concerns itself with these nineteenth-century actions – or, sometimes, failures to act – by the nation's executive and legislative bodies, as well as other public events involving the church-state relationship.
15 - Family Law
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 05 October 2015
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- 06 October 2015, pp 703-745
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Summary
This chapter examines key issues at the intersection of religion and family law. The chapter begins with a brief look at the states’ accommodation of religious choice in laws governing entry into marriage. Next, the chapter explores the rich topic of religion and custody of children, examining (1) the role of religion as a positive or negative factor in the choice of a primary custodian, (2) restrictions on a parent's behavior or time with the child for reasons related to religion, and (3) enforcement of parental agreements concerning the child's religious upbringing. The chapter then turns to adoption, examining religious matching laws and judicial inquiries into the religion of prospective adoptive parents. Finally, the chapter explores religious choices about divorce, in particular, the question of whether a civil court will enforce a religiously grounded marriage contract.
A. Entering Marriage: Solemnization
In the United States, marriage has always been the subject of civil authority. The state, rather than the church or the individual, controls access to and exit from the relationship. Marriage may begin with a private agreement, but this agreement gives way to a series of nonnegotiable terms imposed by the state. Simply put, marriage is a status arising from a contract. In an increasing number of instances, however, the state defers to private choices about marriage. A simple and long-standing example of this deference lies in state laws that give parties freedom to solemnize their marriage through a religious ceremony.
Every state permits religious solemnization of marriage. State statutes vary, however, in their willingness to defer to private choices about religious solemnization. Some statutes are quite broad, permitting solemnization, for example, “in accordance with any mode of solemnization recognized by any religious denomination.” Other statutes are more particularized, identifying specific religious faiths and religious officials who may solemnize a marriage. Some states permit solemnization in religious organizations that have no ministers or priests. Some statutes specify that the religious officiant must perform the ceremony in accord with religious rules or customs.
4 - The Establishment Clause
- Boris I. Bittker, Scott C. Idleman, Marquette University, Wisconsin, Frank S. Ravitch, Michigan State University
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- Religion and the State in American Law
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- 05 October 2015
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- 06 October 2015, pp 149-209
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Summary
Introduction
The Establishment Clause of the First Amendment textually provides that “Congress shall make no law respecting an establishment of religion.” In the period since its framing and ratification, now extending well over two centuries, the meaning and reach of the clause have moved beyond a strict understanding of its text. Three developments in particular warrant mention at the outset. The first is that the clause has been held to apply to all branches of government – legislative, executive, and judicial – not simply to the first of these, as the term “Congress” might suggest. The second is that by virtue of a doctrine called “Fourteenth Amendment incorporation,” the clause also has been held to apply to all levels of government – federal, state, and local – such that today it essentially applies to virtually every form of legal or governmental action. From the Congress and the president of the United States, to the agencies, universities, and court systems of the fifty states, to the school districts and police departments of every municipality, all are bound by the limits and prohibitions of the Establishment Clause. State and local governments are further constrained, moreover, by the analogous provisions of their own state constitutions. These provisions, though largely not addressed in this chapter, can differ markedly from the Establishment Clause, and several state constitutions, either by these or other provisions, specifically restrict the relationship between religion and public education or the use of public revenue for religious institutions or purposes.
The third development, which is as much cultural as legal, is that the contemporary reach and impact of the clause are also a product of developing notions of what counts as “law respecting an establishment of religion,” which itself reflects changing understandings of the American political community. Concerns that animated the clause's inclusion – ”the church exercising the coercive power of government,” “direct financial support of the church … through general tax revenue,” and “control by the state over the church” – still persist but for many may not seem like looming threats. Conversely, institutions and practices that may today immediately arouse establishment concerns – breaches in the metaphorical wall of separation between church and state – were or would have been mostly unproblematic within the world of Protestant Christianity and limited government that largely defined early America.