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 THE LANDSCAPE OF CONTEMPORARY JURISPRUDENCE REGARDING FREE EXERCISE OF RELIGION

2013 ◽  
Vol 7 (2) ◽  
pp. 261-283
Author(s):  
Jerold Waltman
Keyword(s):  
Executive Branch ◽  
Religious Institutions ◽  
Free Exercise ◽  
Current State ◽  
Prisoner Rights ◽  
Or Groups ◽  
Political Interests ◽  
Wide Range ◽  
Religious Speech ◽  
Free Exercise Of Religion

Since 1990 the debate over the limits of free exercise of religion has touched the courts, the Congress, and the executive branch. A wide range of issues has emerged: property use, prisoner rights, religious speech and association in schools, church’s autonomy in hiring employees, and the Obama administration’s policies toward health insurance requirements for religious institutions and businesses. The purpose of this paper is to assess the current state of free exercise jurisprudence through a survey of the major developments in these fields. It seems that when free exercise issues affect individuals or religious institutions alone, a wide scope is allowed for religious liberty. However, when other political interests come into play—such as gay and lesbian groups or groups representing women—the record is far more mixed

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.

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.

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.

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