scholarly journals THE MIXED LEGACY OF MAGNA CARTA FOR AMERICAN RELIGIOUS FREEDOM

2017 ◽  
Vol 32 (2) ◽  
pp. 207-226
Author(s):  
Steven K. Green
Keyword(s):  
First Amendment ◽  
Religious Freedom ◽  
United States Supreme Court ◽  
The United States ◽  
Religious Institutions ◽  
United States Supreme ◽  
Magna Carta ◽  
American Law ◽  
The Church ◽  
Government Authority

AbstractIn 2015 Magna Carta celebrated its 800th anniversary. The Great Charter has been widely heralded as a fount of many rights that are highly valued in British and American law. One right that people have identified in the Carta is that of religious freedom. Magna Carta contains two provisions guaranteeing freedom of the church from government authority. In 2013, the United States Supreme Court relied on that authority in a ruling that affirmed the principle of religious autonomy. This article argues that relying on the legacy of Magna Carta for the principle of religious freedom is tenuous: the document had little influence on the development of the First Amendment. Even Magna Carta's authority for the principle of church autonomy is overstated, as the Carta had nothing to do with the development of that principle in American law. Finally, judicial reliance on Magna Carta for the principle of religious freedom risks elevating protections for religious institutions over the interests of individuals. As a result, the legacy of Magna Carta for the principle of religious freedom is mixed, at best.

The Church–Clergy Relationship and Anti-discrimination Law

2013 ◽  
Vol 15 (2) ◽  
pp. 144-157 ◽  
Author(s):  
Nicholas Hatzis
Keyword(s):  
First Amendment ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Church Of Scotland ◽  
Lutheran Church ◽  
House Of Lords ◽  
Evangelical Lutheran Church ◽  
Evangelical Lutheran ◽  
The Church

In its recent judgment in Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, the United States Supreme Court held that the First Amendment precludes the application of anti-discrimination law to the employment relationship between a church and its clergy. In 2005 the House of Lords had reached the opposite conclusion, ruling, in Percy v Board of National Mission of the Church of Scotland, that the decision to dismiss an ordained minister was not a spiritual matter falling outside the scope of anti-discrimination legislation. This article argues that Percy largely neglected important aspects of church autonomy and that the reasoning in Hosanna-Tabor offers an opportunity to rethink whether secular law should be allowed to affect a religious group's decision to appoint or dismiss a minister.

A Matter of Context: Casey and the Constitutionality of Compelled Physician Speech

2015 ◽  
Vol 43 (1) ◽  
pp. 35-50 ◽  
Author(s):  
Scott W. Gaylord
Keyword(s):  
First Amendment ◽  
United States Supreme Court ◽  
Freedom Of Speech ◽  
The United States ◽  
State Regulation ◽  
United States Supreme ◽  
Strict Scrutiny ◽  
Legitimate Interest ◽  
Single Standard ◽  
The Government

The First Amendment states that “Congress shall make no law…abridging the freedom of speech.” Given the myriad ways in which freedom of speech can be implicated, the United States Supreme Court has not adopted a single standard for reviewing First Amendment speech claims. With respect to compelled speech, the Court has instructed that “context” is dispositive. When the government attempts to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein,” the Court applies strict scrutiny. When, however, “the State has a significant role to play in regulating” a particular context, government-compelled disclosures may be subject to a lower standard of review: “When a state regulation implicates First Amendment rights, the court must balance those interests against the State’s legitimate interest in regulating the activity in question.”

scholarly journals Institutional Religious Freedom in Full: What the Liberty of Religious Organizations Really Is and Why It an “Essential Service” to the Common Good

Religions ◽  
2021 ◽  
Vol 12 (6) ◽  
pp. 414
Author(s):  
Timothy Samuel Shah
Keyword(s):  
Common Good ◽  
Religious Freedom ◽  
The United States ◽  
Religious Organizations ◽  
Religious Institutions ◽  
Negative Liberty ◽  
Essential Services ◽  
Definition Of ◽  
The Right ◽  
The Church

Should the freedom of churches and other religious institutions come down to little more than a grudging recognition that “what happens in the church, stays in the church”? In this article, I provide a more robust definition of what I call institutional religious freedom than a crabbed and merely negative understanding. In addition, I also go beyond a libertarian-style defense of institutional religious freedom as the ecclesiastical equivalent of the “right to be left alone” by suggesting a multitude of reasons why institutional religious freedom in a robust form deserves robust protection. Especially amidst exigent challenges such as the global COVID-19 pandemic, an anemic appeal to an ecclesiastical version of negative liberty on merely jurisdictional grounds will not be enough to defend religious organizations from an increasingly strong temptation and tendency on the part of political authorities—often acting on the basis of understandable intentions—to subject such organizations to sweeping interference even in the most internal matters. In contrast, the article offers an articulation of why both the internal and external freedoms of religious institutions require maximum deference if they are to offer their indispensable contributions—indeed, their “essential services”—to the shared public good in the United States and other countries throughout the world. Underscoring the external and public dimensions of institutional religious freedom, the article follows the work of law and religion scholar W. Cole Durham in that it analytically disaggregates the freedom of religious institutions into three indispensable components: “substantive”, or the right of self-definition; “vertical”, or the right of self-governance; and “horizontal”, or the right of self-directed outward expression and action.

Fighting Words

2015 ◽  
pp. 36-43
Keyword(s):  
United States ◽  
Supreme Court ◽  
New Hampshire ◽  
First Amendment ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
School Officials

This chapter describes the fighting-words jurisprudence. It explains why fighting words are unprotected speech. It reviews the Chaplinsky v. New Hampshire (1942) case in which the United States Supreme Court first excluded fighting words from First Amendment protection. The chapter aims to show that, since fighting words are unprotected speech, school officials can censor such speech outside the schoolhouse gate without violating the First Amendment. However, school officials must establish that the speech qualifies as fighting words – a challenging task.

Child Pornography

2015 ◽  
pp. 55-60
Keyword(s):  
United States ◽  
New York ◽  
Supreme Court ◽  
First Amendment ◽  
Child Pornography ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Student Speech ◽  
The Supreme Court

This chapter discusses child pornography speech which the United States Supreme Court first categorically excluded from First Amendment protection in New York v. Ferber (1982). The goal of the chapter is to provide an overview of the child-pornography jurisprudence. The chapter also highlights a case applying the Supreme Court precedent on child pornography to student speech. The chapter concludes that, due to its unprotected nature, students censored for child pornography speech have no First Amendment recourse.

How Ontology Saved Free Speech in Cyberspace

1998 ◽  
pp. 64-69
Author(s):  
Julie Van Camp
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
United States Supreme Court ◽  
The United States ◽  
Physical World ◽  
The Internet ◽  
United States Supreme ◽  
The Supreme Court

Reno v. ACLU, the 1997 landmark decision by the United States Supreme Court providing sweeping protection to speech on the Internet, is usually discussed in terms of familiar First Amendment issues. Little noticed in the decision is the significance of the ontological assumptions of the justices in their first visit to cyberspace. I analyze the apparent awareness of the Supreme Court of ontological issues and problems with their approaches. I also argue that their current ontological assumptions have left open the door to future suppression of free speech as the technology progresses. Ontology is significant because zoning in the physical world has long been recognized as a way to segregate "adult" entertainment from minors. So far, at least, the justices seem to agree that such zoning is not possible in cyberspace, and therefore that adult zones for certain forms of expression are not possible. But this conclusion is far from settled. The degree of free speech on the Internet in the future will depend on whether or not our ontological understanding of cyberspace supports such zoning or renders it incoherent or impossible.

Obscene Speech

2015 ◽  
pp. 50-54
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
Student Speech ◽  
School Officials ◽  
Constitutional Protection

This chapter discusses obscene speech – a category of speech that the United States Supreme Court has excluded from First Amendment protection. The lack of constitutional protection for obscene speech provides an avenue for school officials to censor such student speech off-campus. The goal of the chapter is to provide an overview of the obscenity jurisprudence. The chapter also discusses examples of cases applying Supreme Court precedent on obscenity to censorship of off-campus student speech.

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