Religion and the Constitution

by McConnell, Michael W.; Garvey, John H.; Berg, Thomas C.

• ISBN13: 9780735528413
• ISBN10: 0735528411
• Format: Hardcover
• Copyright: 2002-03-01
• Publisher: Wolters Kluwer

Summary

This text is well-suited to courses in Religious Liberty or Religion And The Constitution. Its comprehensive yet concise volume brings a refreshing new perspective To The study of topics of enduring interest. Features include: exceptional authorship Professors McConnell, Garvey, and Berg are outstanding scholars in their field emphasis on broad, recurring themes to place current debates in context, For example: free exercise of religion in the face of government regulation, government financial assistance to religious institutions, And The role of religion in government institutions, such as schools notes and questions that connect constitutional and religious history with today's constitutional issues focus on the relationship between free exercise and establishment clauses lightly-edited cases that promote deep analysis the text is divided into six main parts: Introduction History Religion in the Regulatory State the Power of the Purse Religion And The Government's Influence Over Culture What is Religion

Table of Contents

Preface	xvii
Acknowledgments	xxi
I. INTRODUCTION	1	(20)
Two Stories	4	(8)
The Other Side of the Coin: The Interaction of Free Exercise and Nonestablishment	12	(9)
Estate of Thornton v. Caldor, Inc.	13	(8)
II. HISTORY	21	(80)
The Theory and Practice of Religious Establishments	21	(17)
Constitution of Massachusetts (1780)	24	(1)
Barnes v. First Parish in Falmouth	25	(6)
Leviathan	31	(7)
Thomas Hobbes
Major Influences on the Idea of Religious Liberty	38	(20)
The Essential Rights and Liberties of Religion in the American Constitutional Experiment	39	(8)
John Witte, Jr.
The Essential Rights and Liberties of Protesants	47	(2)
Elisha Williams
A Letter Concerning Toleration	49	(4)
John Locke
Farewell Address	53	(1)
George Washington
Letter to the Religious Society Called Quakers	54	(1)
George Washington
Letter to a Committee of the Danbury Baptist Association	54	(1)
Thomas Jefferson
Notes on the State of Virginia	55	(3)
Thomas Jefferson
The Virginia Assessment Controversy	58	(13)
Virginia Declaration of Right (1776)	58	(2)
A Bill Establishing a Provision for Teachers of the Christian Religion (1784)	60	(3)
Memorial and Remonstrance Against Religious Assessments	63	(6)
James Madison
A Bill for Establishing Religious Freedom (1786)	69	(2)
The Constitutional Provisions	71	(30)
Framing the First Amendment	71	(14)
Annals of Congress, Aug. 15, 1789	74	(3)
Senate Journal, Sept. 3, 1789	77	(1)
Senate Journal, Sept. 9, 1789	77	(1)
Annals of Congress, Aug. 17, 1789	78	(1)
Issues Concerning Establishment	79	(3)
Issues Concerning Free Exercise	82	(3)
Incorporation in the Fourteenth Amendment	85	(16)
Permoli v. New Orleans	85	(5)
School District of Abington Township v. Schempp (Brennan, J.)	90	(3)
Anarchy, State, and Utopia	93	(2)
Robert Nozick
State of Oregon v. City of Rejneeshpuram	95	(6)
III. RELIGION IN THE REGULATORY STATE	101	(324)
Free Exercise: Is Accommodation Required?	102	(98)
The Historical Debate	103	(20)
The Origins and Historical Understanding of Free Exercise of Religion	103	(10)
Michael W. McConnell
A Constitutional Right of Religious Exemptions: An Historical Analysis	113	(10)
Philip A. Hamburger
The First Free Exercise Cases	123	(10)
People v. Philips	123	(7)
Simon's Executors v. Gratz	130	(3)
Belief and Conduct: the Mormon Cases	133	(15)
Reynolds v. United States	135	(7)
Davis v. Beason	142	(3)
The Late Corporation of the Church of Jesus Christ of of Latter-Day Saints v. United States	145	(3)
Modern Exemptions	148	(15)
Sherbert v. Verner	149	(11)
Wisconsin v. Yoder	160	(3)
The Demise of Exemptions	163	(17)
Employment Division v. Smith	166	(9)
In Defense of Smith and Free Exercise Revisionism	175	(4)
William P. Marshall
A Response to Professor Marshall	179	(1)
Michael W. McConnell
Federal Legislation to Restore Exemptions	180	(16)
City of Boerne v. Flores	181	(7)
In re Young	188	(8)
State Religious Freedom Provisions	196	(4)
First Covenant Church v. City of Seattle	197	(3)
Current Free Exercise Litigation	200	(75)
Free Exercise Under Smith: Neutrality and General Applicability	201	(16)
Church of the Lukumi Babalu Aye v. Hialeah	201	(4)
Rader v. Johnston	205	(2)
Fraternal Order of Police v. City of Newark	207	(7)
Note on ``Hybrid'' Claims	214	(3)
Issues Under Heightened Free Exercise Scrutiny	217	(58)
What Is a ``Burden''?	217	(1)
Braunfeld v. Brown	218	(7)
Lyng v. Northwest Indian Cemetery Protective Association	225	(12)
Sincerity and Consistency	237	(1)
United States v. Ballard	237	(8)
Governmental Justifications	245	(1)
General Methodology	245	(1)
United States v. Lee	245	(4)
St. Agnes Hospital v. Riddick	249	(10)
Paternalistic Justifications
Baumgartner v. First Church of Christ, Scientist	259	(5)
Swann v. Pack	264	(11)
Establishment Clause: Is Accommodation Permitted?	275	(85)
Introduction: The ``Clash'' Between the Clauses	276	(16)
The ``Clash'' and the Lemon v. Kurtzman Test	276	(1)
Thomas v. Review Board (Rehnquist dissent)	276	(5)
Wallace v. Jaffree	281	(2)
The Historical Understanding	283	(2)
Annals of Congress	285	(3)
Two Other Questions About Accommodations	288	(4)
Current Doctrine	292	(23)
Corporation of Presiding Bishop v. Amos	293	(8)
Texas Monthly v. Bullock	301	(14)
Effect on Third Parties	315	(7)
Equal Employment Opportunities Enforcement Act of 1971	315	(3)
Trans World Airlines v. Hardison	318	(2)
Estate of Thornton v. Caldor Inc.	320	(2)
Denominational Neutrality	322	(19)
Board of Education, Kiryas Joel Village School District v. Grumet	322	(12)
Larson v. Valente	334	(7)
Pervasive Governmental Presence	341	(19)
Cruz v. Beto	341	(3)
Katcoff v. Marsh	344	(10)
Rigdon v. Perry	354	(6)
Institutional Religion	360	(65)
The Formation of Churches	360	(16)
Religious Structures	361	(1)
Secular Structures	362	(2)
First Amendment Concerns	364	(1)
Terrett v. Taylor	364	(4)
Madison's Veto Message	368	(2)
Mazaika v. Krauczunas	370	(6)
The Fragmentation of Churches	376	(16)
Watson v. Jones	376	(6)
Jones v. Wolf	382	(10)
Churches as Employers	392	(15)
Combs v. United Methodist Church	394	(13)
Torts by Churches	407	(18)
Nally v. Grace Community Church of the Valley	408	(5)
Moses v. Diocese of Colorado	413	(12)
IV. THE POWER OF THE PURSE	425	(178)
Introduction: Government Aid in Modern Times and in the Founding Generation	425	(20)
Everson v. Board of Education	426	(13)
Note on the Uses of History: Religious Assessments and the Establishment Clause	439	(1)
Board of Education v. Allen	440	(5)
The Historical Struggle Over Nonpublic Education: Subsidy or Suppression?	445	(19)
Before the Civil War	445	(5)
A Political History of the Establishment Clause	446	(4)
John Jeffries
James Ryan
After the Civil War	450	(14)
Reconstruction	450	(1)
The Blaine Amendment	451	(7)
Continued Conflict	458	(1)
Pierce v. Society of Sisters	458	(2)
Brief for the Governor of Oregon	460	(4)
The Lemon Approach: No Aid to Religious Teaching	464	(39)
Lemon v. Kurtzman	464	(11)
Committee for Public Education v. Nyquist	475	(8)
Lemon Applied: Different Forms of Aid, Different Institutions	483	(12)
Forms of Aid to Nonpublic Schools	483	(4)
Distinctions Among Institutions	487	(1)
Hospitals	487	(4)
Universities	491	(3)
Social Service Organizations	494	(1)
The High Water Mark of ``No Aid''	495	(8)
School District of Grand Rapids v. Ball	495	(5)
Aguilar v. Felton	500	(3)
The New Approach: ``Neutral'' Aid	503	(50)
The Rise of Neutrality: ``Indirect'' Forms of Aid	503	(27)
Witters v. Dept. of Services for the Blind	503	(7)
Zobrest v. Catalina Foothills School District	510	(20)
Direct Aid: The First (?) Overrulings	530	(23)
Mitchell v. Helms	531	(22)
Ongoing Controversies Over Government Aid	553	(50)
School Vouchers Under the Establishment Clause	554	(10)
Jackson v. Benson	554	(10)
State Constitutional Restrictions---and Overriding Federal Rights?	564	(12)
Witters v. State Commission for the Blind	564	(12)
``Strings'' on Government Aid	576	(13)
Dodge v. Salvation Army	576	(5)
Grove City College v. Bell	581	(4)
Bob Jones University v. United States	585	(4)
Religious Social Services and the ``Charitable Choice'' Debate: Issue of Government Aid and Religious Autonomy	589	(14)
Personal Responsibility and Work Opportunity Reconciliation Act of 1996	591	(1)
Bowen v. Kendrick	591	(12)
V. RELIGION AND THE GOVERNMENT'S INFLUENCE OVER CULTURE	603	(266)
Efforts to Create a Public Culture	605	(125)
Compelled Affirmations of Belief: Test Oaths and Others	605	(16)
Torcaso v. Watkins	606	(7)
Commonwealth v. Cooke	613	(2)
Board of Education v. Barnette	615	(6)
Official Prayers in Public Schools: The Modern Decisions	621	(35)
The Basic Decisions	621	(1)
Engel v. Vitale	621	(3)
Abington School District v. Schempp	624	(8)
Note on Official Religious Exercises and History	632	(1)
Marsh v. Chambers	633	(2)
The Reaffirmation (Extension?) of the School-Prayer Decisions	635	(1)
Wallace v. Jaffree	635	(9)
Lee v. Weisman	644	(12)
School Curriculum Issues: Evolution and Creationism	656	(15)
Epperson v. Arkansas	658	(8)
Edwards v. Aguillard	666	(5)
Challenges to the Public School Curriculum	671	(17)
Mozert v. Hawkins County Board of Education	672	(11)
Note on Teaching About Religion in Public Schools	683	(5)
Alternatives to Public Education	688	(16)
Kentucky State Board for Elementary and Secondary Education v. Rudasill	689	(6)
Wisconsin v. Yoder	695	(9)
Public Religious Displays	704	(17)
Lynch v. Donnelly	704	(11)
County of Allegheny v. Aclu	715	(6)
Sunday Closing Laws	721	(9)
McGowan v. Maryland	723	(5)
Note on Accommodating Sabbath Observers	728	(2)
Regulation of Private Religious Speech	730	(67)
Free Speech Principles	731	(18)
Government as Regulator	733	(1)
Prior Restraints	733	(1)
Lovell v. Griffin	733	(2)
Overbreadth and Vagueness	735	(1)
Content Discrimination	736	(1)
Peck v. Sony Music Corporation	737	(4)
Government as Property Owner: ``Forum'' Law	741	(1)
Commonwealth v. Davis	742	(2)
International Society for Krishna Consciousness v. Lee	744	(5)
Religous Free Speech: Does Free Exercise Add More Protection?	749	(13)
Murdock v. Pennsylvania	749	(6)
Heffron v. International Society for Krishna Consciousness	755	(7)
Religious Speech in Public Forums: Does the Establishment Clause Require Greater Restrictions?	762	(15)
Widmar v. Vincent	762	(7)
Capitol Square Reviews & Advisory Board v. Pinette	769	(8)
Religious Speech in Public Schools	777	(20)
Board of Education v. Mergens	777	(7)
Good News Club v. Milford Central School	784	(13)
Drawing the Line Between Government and Private Speech	797	(17)
Santa Fe Independent School District v. Doe	797	(11)
Problem: Alabama Injunction Against Religion in Schools	808	(2)
Guidelines on Religious Exercise and Religious Expression in the Federal Workplace	810	(4)
Religion and Democracy	814	(55)
Religous Voices in Politics: Cases	814	(14)
Lemon v. Kurtzman	815	(1)
McDaniel v. Paty	816	(2)
Roe v. Wade	818	(1)
Harris v. McRae	819	(1)
Webster v. Reproductive Health Services	820	(2)
Bowers v. Hardwick	822	(2)
Clayton v. Place	824	(4)
Religious Voices in Politics: Commentary	828	(11)
The Place of Religious Argument in a Free and Democratic Society	829	(3)
Robert Audi
Five Reasons to Reject the Claim that Religious Arguments Should Be Excluded from Democratic Deliberation	832	(7)
Michael W. McConnell
Judges and Teachers	839	(9)
Idaho v. Freeman	839	(9)
Institutional Participation in Policymaking	848	(21)
Branch Ministries v. Rossotti	849	(12)
Larkin v. Grendel's Den	861	(8)
VI. WHAT IS ``RELIGION''	869	(38)
The Draft Cases	870	(16)
United States v. Seeger	871	(8)
Welsh v. United States	879	(7)
Defining Religion in Other Contexts	886	(21)
Smith v. Board of School Commissioners	887	(5)
Malnak v. Yogi	892	(10)
Note on Income Taxes and the Definition of Religion	902	(5)
Table of Cases	907	(8)
Table of Statutes	915	(2)
Table of Authorities	917	(10)
Index	927