Law, Religion, and the Present Danger

Worldview ◽  
1979 ◽  
Vol 22 (9) ◽  
pp. 46-53
Author(s):  
Harold J. Berman
Keyword(s):  
First Amendment ◽  
The United States ◽  
United States Constitution ◽  
Establishment Clause ◽  
Free Exercise ◽  
Group Activities ◽  
Or Groups ◽  
Governmental Support ◽  
The One ◽  
Governmental Control

When the word "law" is juxtaposed with the word "religion," an American lawyer today is apt to think immediately of the First Amendment to the United States Constitution with its double protection against any governmental interference in "the free exercise" of religion on the one hand and against any governmental "establishment" of religion on the other. From the standpoint of contemporary American constitutional law, religion has become the personal and private affair of individual citizens or groups of citizens. Indeed, in recent decades our courts, in interpreting the "free exercise" clause, have gone far toward immunizing individual and group activities from governmental control, whether federal or state, whenever they are considered by the persons engaging in them to be of a religious character; and at the same time, under the "establishment" clause the courts have struck down most forms even of indirect governmental support of religion, whether federal or state.

THE (NOT SO) EXCEPTIONAL ESTABLISHMENT CLAUSE OF THE UNITED STATES CONSTITUTION

2018 ◽  
Vol 33 (2) ◽  
pp. 137-154
Author(s):  
Brett G. Scharffs
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
First Amendment ◽  
The United States ◽  
United States Constitution ◽  
Establishment Clause ◽  
Actual State ◽  
World War ◽  
American Experience ◽  
The U.S

ABSTRACTSince the end of World War II and the beginning of the human rights era, a common narrative has dominated international discussions of law and religion, especially in Europe, that emphasizes the alleged idiosyncrasy and uniqueness of U.S. Constitutional law regarding freedom of religion. What I call the “standard story” notes that unlike human rights instruments, and the constitutions of most European States, the U.S. Constitution contains an “Establishment Clause” prohibiting an establishment of religion, while European countries do not have prohibitions on state establishments, and indeed the relationships between religion and the state fall along a continuum running from cooperation, favored religions, to actual state establishments of religion. According to the standard story, the Free Exercise Clause of the U.S. First Amendment is a precursor of and has analogues in the human rights instruments’ provisions protecting freedom of thought, conscience, and religion, but the Establishment Clause is characterized as being sui generis, a thing unto itself. The U.S. experience with the antiestablishment principle, symbolized by Jefferson's wall of separation, the standard story notes, is so unique and so different that the lessons gleaned there have very little to offer Europe, or indeed perhaps the rest of the world. In this article I argue, as my title suggests, that the American experience is not as unique as some (especially Europeans) sometimes think it is.

“[T]his most unnecessary, unjust, and disgraceful war”

2011 ◽  
Vol 12 (1-2) ◽  
pp. 82-103
Author(s):  
Juhani Rudanko
Keyword(s):  
United States ◽  
First Amendment ◽  
Freedom Of Speech ◽  
The United States ◽  
War Of 1812 ◽  
United States Constitution ◽  
The Federalist ◽  
Sedition Act ◽  
The Face ◽  
Federalist Party

This article focuses on face-threatening attacks on the Madison Administration during the War of 1812. The discussion is framed by the First Amendment to the United States Constitution, with the language of the Amendment protecting freedom of speech, and also by the Sedition Act of 1798, which, if it had been made permanent, would have seriously curtailed freedom of speech. The War of 1812 was intensely unpopular among members of the Federalist Party, and their newspapers did not shy away from criticising it. This article investigates writings published in the Boston Gazette and the Connecticut Mirror during the war. It is shown that the criticism took different forms, ranging from accusing President Madison of “untruths” to painting a picture of what was claimed to be the unmitigated hopelessness of his position, both nationally and internationally, and that the criticism also included harsh personal attacks on his character and motives. It is suggested that some of the attacks may be characterised as exhibiting aggravated impoliteness. The article also considers President Madison’s attitude in the face of the attacks.

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.

US Exceptionalism in the Regulation of Religion

2019 ◽  
pp. 125-140
Author(s):  
Winnifred Fallers Sullivan
Keyword(s):  
First Amendment ◽  
Establishment Clause ◽  
American Religion ◽  
Very Old ◽  
Free Exercise ◽  
The People ◽  
The Us ◽  
Strong Commitment ◽  
Us Exceptionalism ◽  
Dual Commitment

This chapter considers the remarkable diversity of American religion from the beginning: the constitutionalizing of religion, the reasons for delayed implementation of the First Amendment religion clauses, the evolution of free exercise and establishment clause doctrine, and the ongoing difficulty of defining religion for US law. What makes US regulation of religion stand out among national legal orders is the dual commitment to federalism and to disestablishment. With a low ‘statism’ and a strong commitment to equality—theological, as well as political—academic expertise has little purchase on the national mind. Religion is what the people say it is. That is a very old story in the US.

The Invisible Center: Christian Liberalism in American Religious Freedom Jurisprudence

2019 ◽  
pp. 174387211986467
Author(s):  
Hannah Dick
Keyword(s):  
Religious Freedom ◽  
Legal Theory ◽  
Religious Studies ◽  
Establishment Clause ◽  
Liberal State ◽  
Conceptual Tool ◽  
Free Exercise ◽  
Liberal Democratic ◽  
Antidiscrimination Law ◽  
The One

This article interrogates the notion of liberal state neutrality when it comes to adjudicating religious freedom claims. Drawing on work in political theory, legal theory, and religious studies, I argue that Christianity is a central and invisible feature of liberalism. I then examine how Christian liberalism has shaped American religious freedom jurisprudence, analyzing contradictory Supreme Court decisions involving free exercise and establishment claims. On the one hand, the language of secular purpose has safeguarded several Christian expressions from Establishment Clause scrutiny. On the other hand, since the passage of the Religious Freedom Restoration Act (1993), some Christian conservative legal advocates have repositioned Christianity as a persecuted religion requiring free exercise exemptions from antidiscrimination law. That the Court has recently obliged this more narrow understanding of religious freedom demonstrates the resilience of the Christian liberal state. While the cases are drawn from the American context, I suggest that the language of Christian liberalism is a useful conceptual tool for analyzing religious freedom claims in a variety of liberal democratic contexts.

Remembering Lenny Bruce

2014 ◽  
Vol 30 (3) ◽  
pp. 214-217
Author(s):  
Charles Marowitz
Keyword(s):  
United States ◽  
First Amendment ◽  
Free Speech ◽  
Fourth Amendment ◽  
Senior Citizen ◽  
The United States ◽  
United States Constitution

On 13 October 2012, Lenny Bruce, had he not accidentally overdosed on narcotics (or committed suicide – the jury is still out on that one), would be eighty-seven years old. It is, of course, a thoroughly incredible notion – like an octogenarian Mozart, a super annuated Janis Joplin, or James Dean signing up for a senior citizen pension. Poètes maudits, doomed rock icons, and self-destructive superstars are supposed to die young. Their myth demands it, and we wouldn't have it any other way.Bruce at forty-one, perched on a toilet bowl with a spike in his right arm and his last typed words (‘conspiracy to interfere with the Fourth Amendment const—’) in the barrel of his still humming electric typewriter, died characteristically. He was always associated with toilet humour and throughout the last decade of his life ex hausted himself trying to demonstrate that the United States Constitution protected the free speech for which one court after another mercilessly prosecuted him. (The Fourth Amendment, incidentally, protects citizens from ‘unreasonable searches and seizures’ and, along with the state's First Amendment violations, was as much responsible for his downfall as the cocaine and morphine.)

scholarly journals What Can We Expect of Law and Religion in 2020?

2020 ◽  
Vol 73 (1) ◽  
pp. 73-86
Author(s):  
Leslie C. Griffin
Keyword(s):  
United States ◽  
Supreme Court ◽  
Church And State ◽  
The United States ◽  
Establishment Clause ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
Religious Person ◽  
The Supreme Court ◽  
The Government

The United States is in a religion-friendly mood—or at least its three branches of government are. The Supreme Court is turning away from its Free Exercise Clause analysis that currently holds that every religious person must obey the law. At the same time, the Court is rejecting its old Establishment Clause analysis that the government cannot practice or support religion. The old model of separation of church and state is gone, replaced by an ever-growing unity between church and state. This Article examines how much union of church and state this Court might establish.

Religion as Collective Right

2020 ◽  
pp. 171-195
Author(s):  
Michael D. McNally
Keyword(s):  
Native American ◽  
First Amendment ◽  
Common Sense ◽  
Religious Freedom ◽  
The United States ◽  
Native Peoples ◽  
Federal Indian Law ◽  
Indian Law ◽  
The One ◽  
Rhetorical Force

This chapter considers efforts to legislate Native American religious freedom in the American Indian Religious Freedom Act (AIRFA, 1978). Where courts and even common sense have seen AIRFA as a religious freedom statute—as an extension of the legal protections of the First Amendment into the distinctive terrain of Native American traditions—the chapter suggests a different view. If the legal force of “religious freedom” discourse has been only dimly effective for Native sacred claims in courts, this chapter is the one that most pointedly shows how Native peoples drew on the rhetorical power of the sacred and religious freedom to win significant legislative protections specific to Native peoples. It does so through interviews with Suzan Shown Harjo. These interviews show how the remarkable legislative accomplishment of AIRFA and, later, the Native American Graves Protection and Repatriation Act (1990), carry the rhetorical force of religious freedom into the legal shape of federal Indian law, with its recognition of treaty-based collective rights and the United States' nation-to-nation relationship with Native peoples.

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