Religious Marginality and the Free Exercise Clause

1983 ◽  
Vol 77 (3) ◽  
pp. 652-665 ◽  
Author(s):  
Frank Way ◽  
Barbara J. Burt
Keyword(s):  
First Amendment ◽  
Religious Groups ◽  
Free Exercise ◽  
Marginal Groups ◽  
Free Exercise Clause ◽  
Judicial Opinions ◽  
Free Exercise Of Religion ◽  
The Universe

This article offers a measure of judicial legitimation of marginal religious groups in litigation involving the free exercise of religion clause of the First Amendment. Throughout the greater part of history, marginal religious faiths have found the path to acceptance filled with legal obstacles. Pfeffer (1974) noted that legitimation of marginal groups occurs either when the secular norms change or when such groups change their religious doctrines. The Pfeffer thesis is generally consistent with the sect-church continuum defined by sociologists of religion. In the research reported below, we examined an alternative thesis, namely that official legitimation by the judiciary of marginal religions is a function of their marginality. We compared the results of the universe of all reported state and federal judicial opinions from 1946 through 1956 and 1970 through 1980. We found substantial increases in the percentage of successfully litigated free exercise claims, and furthermore, that success in litigating these claims is closely associated with those factors that distinguish these groups as marginal.

U.S. Supreme Court Decision-Making and the Free Exercise Clause

1993 ◽  
Vol 55 (3) ◽  
pp. 511-529 ◽  
Author(s):  
Joseph A. Ignagni
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
Attitudinal Model ◽  
The Supreme Court ◽  
Free Exercise Of Religion ◽  
The U.S

The U.S. Supreme Court, at various times, has changed the constitutional tests it claimed to use in order to settle free exercise of religion disputes. These changes in official doctrine and the manner in which many cases have been decided have left the Supreme Court open to much criticism from legal scholars. This study differs substantially from previous work in this area. It uses a fact-attitudinal model to analyze the cases from the Warren, Burger, and Rehnquist Courts. Its findings indicate that these decisions are, generally, explainable and predictable.

The First Amendment, Varieties of Neutrality, and Same-Sex Marriage

2009 ◽  
Vol 2 (3) ◽  
pp. 353-377
Author(s):  
Emily R. Gill
Keyword(s):  
Public Policy ◽  
Sexual Orientation ◽  
First Amendment ◽  
Religious Belief ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Beliefs And Practices ◽  
Free Exercise ◽  
Same Sex Couples ◽  
Free Exercise Of Religion

AbstractThis article compares the difficulty in achieving a public stance of neutrality toward sexual orientation with the difficulty in achieving neutrality toward religious belief. Strict separation treats religion as a private commitment, with firm limits on government cooperation with religion and strong protection for free exercise. Formal neutrality discounts religion as a basis either for conferring special benefits or for withholding generally available benefits. Positive neutrality attends to the practical effects of public policy, sometimes requiring an abandonment of nonestablishment in favor of policies that allow for greater protection for free exercise of religion. I argue that none of these forms of neutrality establishes impartiality regarding either religious belief or same-sex marriage. First, Michael McConnell's “disestablishment” approach to sexual orientation and same-sex marriage instantiates are neither neutrality nor civic equality. Second, while formal neutrality may render an establishment more inclusive, it may exclude those whose beliefs and practices are not deemed in accordance with public purposes. Third, although positive neutrality may remove burdens from same-sex couples whose conscientious convictions may impel them to marry, it may still favor some kinds of practices over others.

scholarly journals Treading on Sacred Land: First Amendment Implications of ICE's Targeting of Churches

2019 ◽  
pp. 315-343
Author(s):  
Gabriella D'Agostini
Keyword(s):  
First Amendment ◽  
Undocumented Immigrants ◽  
Free Association ◽  
Legal Rights ◽  
Religious Institutions ◽  
Potential Solution ◽  
Free Exercise ◽  
Free Exercise Of Religion ◽  
Immigration And Customs Enforcement ◽  
Sacred Land

In the last few years, Immigration and Customs Enforcement (ICE) has begun to target religious institutions—specifically churches—as a means to find and arrest undocumented immigrants. This technique is in legal tension with the First Amendment rights of free exercise of religion and free association. It is unclear, however, how these legal rights protect those most affected by this targeting tactic: undocumented immigrants. Undocumented immigrants may lack standing to challenge ICE’s tactics on their own and may require the help of related parties to protect their interests. This Note explores a potential solution to the ambiguity surrounding undocumented immigrants’ protection under the First Amendment. Specifically, this Note argues that while undocumented immigrants may be barred from filing suits challenging the constitutionality of ICE raids on religious institutions, U.S. citizens who worship alongside these immigrants can and should bring such suits and demand injunctions to end the practice. These citizens not only have the undisputed legal rights to bring such potential claims but also may use those rights to provide a legal and practical shield for undocumented immigrants who seek to attend church without government intrusion.

scholarly journals Religious Values in Liberal Democracy

Religions ◽  
2020 ◽  
Vol 11 (12) ◽  
pp. 682
Author(s):  
Emily R. Gill
Keyword(s):  
Civil Rights ◽  
Liberal Democracy ◽  
Religious Values ◽  
Religious Groups ◽  
Beliefs And Practices ◽  
Free Exercise ◽  
Private Organizations ◽  
Specific Interpretation ◽  
Free Exercise Of Religion ◽  
The Stability

Religious values neither wholly threaten nor wholly reinforce the stability of liberal democracy. This depends upon how they may be interpreted and applied. The recent influence of Christian nationalists, who would promote a specific interpretation of Christianity as the only legitimate basis for public policy, and of those who would elevate religious liberty above all other rights, does not promote pluralism. Although people should be able to live out their religious commitments, it is the state, not individuals or private organizations, that must draw the line between the free exercise of religion and the civil rights of those who may be adversely affected by the religious exercise of others. First, religious rights may threaten other rights, particularly when reinforced with public funds. Second, religion makes valuable contributions to pluralism when it protects the conscientious beliefs and practices of individuals and of minority religious groups. Finally, concerning LGBT civil rights, individual religious believers should be accommodated as much as possible, but their organizations should be required to arrange for others without objections to provide services that are sought. Religion’s greatest contribution occurs when it is allied with movements that enhance individual rights, including but not limited to the free exercise of religion.

The Competing Perspectives of the Religion Clauses

2020 ◽  
pp. 1-20
Author(s):  
Howard Gillman ◽  
Erwin Chemerinsky
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
American History ◽  
Religious Beliefs ◽  
Establishment Clause ◽  
Court Cases ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
The Future ◽  
Political Divide

This chapter describes the recent Supreme Court cases dealing with the Establishment Clause and Free Exercise Clause of the First Amendment, while also previewing the issues likely to arise in the future. It identifies how for both of these provisions there are two competing philosophies, which are titled “accommodation” and “separation.” “Accommodationists” see little as violating the Establishment Clause but want the Free Exercise Clause to be aggressively used to create an exception to general laws based on religious beliefs. “Separationists” see the Establishment Clause as creating a secular government and reject special exceptions for religion. At this point in American history, there is a political divide: conservatives tend to favor the accommodation approach, while liberals favor the separationist view.

Religious Expression in Public Schools

2018 ◽  
Author(s):  
Kevin R. Pregent ◽  
Nathan C. Walker
Keyword(s):  
Public Schools ◽  
First Amendment ◽  
Establishment Clause ◽  
Religious Activities ◽  
Religious Expression ◽  
Free Exercise ◽  
The Public ◽  
Free Exercise Clause ◽  
The Us ◽  
Teachers And Students

There is perhaps no better setting that exhibits the perennial tension between the Free Exercise Clause and the Establishment Clause than American public schools. The Free Exercise Clause of the First Amendment to the US Constitution ensures that students may retain their religious beliefs, practices, identities, and rights when they enter public schools. The free exercise principle also protects government employees; however, the Establishment Clause of the First Amendment prevents teachers and administrators, as agents of the state, from entangling the public school in religious activities or engaging in school speech that advances or endorses religion. This chapter illustrates how these two principles––free exercise of religion and non-establishment of religion––form the concept known as religious freedom. Attempting to strike this balance are public schools, which are required to serve the entire public, whether religious or not. Those within the school—both teachers and students—may be religious and wish to express their religion or to express their critique of or nonaffiliation with religion. This chapter explores different forms of religious expression for both students and teachers and details the unconstitutional nature of laws that seek to target religion for regulation or fail to accommodate religion in public schools.

Bessard v. California Community Colleges and the Religious Freedom Restoration Act: Implications for Public Administration

1997 ◽  
Vol 26 (2) ◽  
pp. 273-288
Author(s):  
David C. Wyld
Keyword(s):  
Community Colleges ◽  
Public Administration ◽  
First Amendment ◽  
Religious Freedom ◽  
California Community Colleges ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
First Case ◽  
Employment Setting ◽  
Religious Freedom Restoration Act

This article examines the Religious Freedom Restoration Act (RFRA) and the first case in the employment setting decided under it, Bessard v. California Community Colleges. After exploring the judicial and legislative heritage of the RFRA and its relationship to the free exercise clause of the First Amendment, the facts and decision in the Bessard case are analyzed. The implications of the RFRA and the Bessard case are then detailed.

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