Religious Liberty in a Pluralistic Society

by Ariens, Michael S.; Destro, Robert A.

• ISBN13: 9780890896600
• ISBN10: 0890896607
• Edition: 2nd
• Format: Hardcover
• Copyright: 2002-10-30
• Publisher: Carolina Academic Press

Table of Contents

Table of Cases	xxiii
Table of Statutes	xlvii
Preface	li
Introduction	3	(44)
The Role of Characterization and ``Levels of Generality'' in Constitutional Interpretation	3	(17)
Introduction	3	(2)
Characterization as a Process	5	(2)
A Note on Fact-Finding in Constitutional Adjudication	7	(1)
Putting Theory into Practice: Characterizing a Constitutional Case	8	(2)
Notes	10	(2)
Characterization and the Constitutional Norm: Ascertaining the Appropriate Level of Generality	12	(1)
Characterization and the Search for Neutral Principles	13	(1)
Characterizing ``Substantive'' First Amendment Claims	14	(3)
Note	17	(1)
Would a Different Organizing Principle Affect the Meaning of the Religious Liberty Guarantee?	18	(1)
Characterization and the Incorporated First Amendment	18	(1)
Notes	19	(1)
The Problem of Religious Liberty: The ``Role'' of Religion and the Democratic Experiment	20	(27)
Turpin v. Locket	20	(7)
Notes	27	(1)
Terrett v. Taylor	28	(3)
Notes	31	(1)
Minersville School District v. Gobitis	31	(4)
Notes	35	(2)
West Virginia State Board of Education v. Barnette	37	(6)
Notes	43	(4)
History of the Religion Clauses	47	(54)
Background to the Passage of the First Amendment: A Short Study of Religious Liberty in the Colonies	47	(28)
New England	48	(1)
Massachusetts	48	(5)
Connecticut	53	(1)
New Hampshire	54	(1)
Rhode Island	55	(2)
Vermont	57	(1)
The Middle Colonies	58	(1)
Pennsylvania	58	(1)
Delaware	59	(1)
New York	59	(1)
New Jersey	60	(1)
Maryland	60	(1)
The Southern Colonies	61	(1)
North Carolina	61	(1)
South Carolina	61	(1)
Georgia	62	(1)
Virginia	62	(10)
Notes	72	(3)
Framing and Debating the Constitution	75	(5)
The Adoption of the First Amendment	80	(13)
Notes	87	(2)
Notes	89	(4)
Jefferson's Letter to the Danbury Baptist Association	93	(4)
Notes	95	(2)
On History and the First Amendment	97	(4)
Law, Religion and Culture in Antebellum America	101	(48)
Oaths	101	(5)
Jackson ex dem. Tuttle v. Gridley	103	(1)
Notes	104	(2)
Legal Privileges Accorded Catholics and Jews	106	(7)
People v. Phillips	106	(2)
Notes	108	(2)
Simon's Executors v. Gratz	110	(2)
Notes	112	(1)
Blasphemy	113	(11)
People v. Ruggles	114	(1)
Notes	115	(1)
Updegraph v. Commonwealth	116	(2)
Notes	118	(2)
Letter of Thomas Jefferson to Major John Cartwright	120	(1)
J.S., Art. V.--Christianity A Part of the Common Law	121	(1)
Notes	122	(2)
Sunday Laws	124	(7)
Specht v. Commonwealth	125	(1)
Notes	126	(1)
Ex Parte Newman	127	(2)
Notes	129	(2)
Churches and the Holding of Property	131	(11)
Gallego's Executors v. Attorney General	132	(3)
Notes	135	(3)
Vidal v. Girard's Executors	138	(3)
Notes	141	(1)
Joseph Story, The Antebellum Supreme Court And Religion	142	(7)
Joseph Story, Commentaries on the Constitution	143	(1)
Notes	144	(1)
Permoli v. New Orleans	145	(1)
Notes	146	(3)
Religious Liberty, Pluralism and Government Action	149	(52)
Introduction	149	(1)
Religious Education and the ``Schools'' Question Prior to 1920	150	(25)
The Bible in the Common School	150	(2)
Donahoe v. Richards	152	(4)
Notes	156	(2)
State ex rel. Weiss v. District Board	158	(5)
Notes	163	(2)
State Financial Support of Religious Schools	165	(3)
Notes	168	(2)
Education, Native Americans and Religious Liberty	170	(2)
Quick Bear v. Leupp	172	(3)
Note	175	(1)
Protestantism and Minority Religions	175	(21)
Introduction	175	(1)
Defining the Common Culture	176	(1)
Law, Religion and the Supreme Court	176	(1)
Church of the Holy Trinity v. United States	176	(4)
Notes	180	(3)
Bradfield v. Roberts	183	(1)
Note	184	(1)
Sunday Laws in the Supreme Court	185	(1)
The Challenge of Polygamy	186	(1)
Reynolds v. United States	186	(4)
Notes	190	(2)
Davis v. Beason	192	(2)
Notes	194	(2)
The Collapse of the de Facto Establishment	196	(5)
Prohibition	196	(1)
Evolution, the Scopes Trial and Religion in the 1920s	197	(4)
The Contours of the Religious Freedom Guarantee	201	(196)
Introduction	201	(1)
The Legal Framework	201	(7)
The Starting Point: State Constitutions and Laws Protecting Religious Liberty	201	(2)
The United States Constitution: Text and Structure	203	(1)
The ``No Religious Test'' Clause (1787)	203	(1)
The Bill of Rights (1791)	203	(1)
The Fourteenth Amendment (1868)	204	(1)
The ``Incorporation Doctrine'': Relating the Text of the First Amendment to the Text and Structure of the Fourteenth	204	(1)
Envisioning the Structure of the Religious Liberty Guarantee	205	(2)
The ``Structural'' First Amendment	207	(1)
The Constitutional Framework	208	(1)
The Religious Liberty Guarantee in the Supreme Court of the United States: The Concept of ``Free Exercise''	208	(43)
``Free Exercise of Religion''	20	(189)
Community Demographics: Majority Rule and Protection of Minority Religious Communities	209	(1)
Early Interpretations of the Free Exercise Clause: Drawing a Bright Line Between ``Belief'' and ``Action''	210	(1)
Incorporating the Free Exercise Clause: Religious Liberty as an Aspect of Personal Liberty	211	(1)
Preaching & Teaching as Free Exercise: Jehovah's Witnesses	212	(1)
From Sherbert to Smith: Free Exercise as a `Sensible Balance Between Religious Liberty and Competing State Interests	213	(1)
Sherbert v. Verner	214	(5)
Notes	219	(3)
Wisconsin v. Yoder	222	(7)
Notes	229	(1)
Native American Religions and the Religious Liberty Guarantee	230	(1)
Federal Actions Impinging on Native American Religious Practice	231	(1)
Notes	232	(1)
State Actions Impinging on Native American Religious Practice	233	(1)
Employment Division, Department of Human Resources of Oregon v. Smith	234	(11)
Notes	245	(1)
The Content of the Free Exercise Norm After Smith & Lukumi	245	(2)
The Structural Components of the Free Exercise Norm	247	(1)
Federalism, Separation of Powers and Fee Exercise	247	(1)
The Free Exercise Norm as a Component of the Religious Liberty Guarantee	248	(2)
The Development of the Free Exercise Norm Since 1890	250	(1)
The Current Meaning of the Free Exercise Norm	250	(1)
Possible Meanings of the ``Free Exercise Liberty''	250	(1)
Laws ``Respecting an Establishment of Religion''	251	(93)
The Conceptual Framework	251	(1)
``Respecting an Establishment of Religion''	251	(1)
A ``Wall of Separation'' Between Church and State	252	(1)
Setting the Contours of Establishment Clause Jurisprudence	253	(1)
Everson v. Board of Education	253	(17)
Notes	270	(1)
Possible Meanings of the Phrase ``laws respecting an establishment of religion''	271	(1)
Proving an Establishment Clause Claim	272	(1)
Standard of Review: Development and Transition from 1947-1971	272	(2)
The Development of the ``Lemon Test''	274	(1)
Walz v. Tax Commission	274	(6)
Notes	280	(2)
Lemon v. Kurtzman	282	(6)
Notes on ``The Lemon Test''	288	(1)
Does the state action have a ``secular purpose''?	288	(1)
Does the state action have a principal or primary effect that neither advances nor inhibits religion?	289	(1)
What evidence is relevant to the proof of that the principal or primary effect of government policy advances or inhibits religion?	289	(1)
Which party must prove that the principal or primary effect of the challenged state action neither advances nor inhibits religion?	289	(2)
Does a ``principal or primary effect that inhibits religion'' violate the Establishment Clause, the Free Exercise Clause, or both?	291	(1)
Will the state action or policy result in an ``excessive entanglement'' between church and state?	291	(2)
Other Formulations of the Standard	293	(1)
History	293	(1)
Endorsement	294	(2)
Coercion	296	(1)
Equal Treatment	297	(1)
Eliminating the Lemon Test	298	(1)
Official Sponsorship of Religious Activity	298	(1)
Official Prayers	299	(1)
Marsh v. Chambers	299	(3)
Notes	302	(1)
Official Displays	303	(1)
County of Allegheny v. American Civil Liberties Union	304	(19)
Notes	323	(2)
Religious Education for Public School Students	325	(1)
Illinois ex rel. McCollum v. Board of Education	325	(5)
Notes	330	(2)
Zarach v. Clauson	332	(3)
Notes	335	(1)
Delegation of Government Functions	336	(3)
Notes	339	(1)
Religious Associations & the Public Purse	340	(1)
Exemptions	340	(1)
Schools, Churches, and Other Religiously-Affiliated Organizations	341	(3)
The Religious Liberty Guarantee and the Ban on Religious Tests	344	(1)
Freedom of Religious Speech & Press	345	(12)
Possible Meanings of the Liberty of ``Speech & Press''	346	(1)
A Note on Analysis under the Speech & Press Clause	346	(1)
Religious Speech in Public Fora	347	(4)
Limited and Nonpublic Fora	351	(4)
Discrimination the Basis of Content or Perspective	355	(2)
Religious Freedom and Peaceable Assembly	357	(8)
The Concept of ``Peaceable Assembly''	357	(1)
Peaceable Assembly in the Courts	358	(1)
Possible Meanings of the Liberty of ``Peaceable Assembly''	358	(1)
Freedom of Association	358	(1)
Peaceable Assembly and Religious Associations	359	(1)
Distinguishing Individual from Associational Activity	360	(1)
The Significance of Organizational Purpose	360	(1)
The Significance of Organizational Form	361	(1)
Creating and Preserving an Organizational Identity	362	(1)
Maintaining a Personal or Institutional ``Identity''	362	(3)
Religious Freedom and the Right to Petition for a Redress of Grievances	365	(9)
The Petition Clause	365	(1)
Interest Group Litigation to Enforce the Religious Liberty Guarantee	366	(1)
Everson and the Politics of Religious Liberty, circa 1947	367	(1)
The Religious Demographics of the Everson Court	368	(1)
Interest Group Litigation: Protestant, Catholic and Jewish Views	369	(1)
Protestant Organizations	370	(1)
Jewish Organizations	371	(1)
Catholic Organizations	371	(1)
Other Organizations	372	(1)
Religiously Motivated Individuals	372	(1)
Access to the Courts: Standing	373	(1)
Possible Meanings of the liberty ``to petition the Government for a redress of grievances''	374	(1)
Equal Protection & the Religious Liberty Guarantee	374	(11)
Religious Discrimination	375	(1)
Religion as a ``Suspect Classification''	375	(2)
Religious Exemptions and Accommodations	377	(1)
Mandating Equal Access	378	(1)
Voluntary Prayer, Bible Reading & Religious Instruction	378	(1)
The Equal Access Act, 20 U.S.C. §§ 4071, et seq.	379	(2)
Equal Opportunity to Participate in Government Assistance Programs	381	(1)
Charitable Choice, 42 U.S.C. § 604(a)	381	(3)
Notes	384	(1)
Separation of Powers & Federalism: The Structural Components of the Religious Liberty Guarantee	385	(12)
State Power to Protect Religious Liberty	385	(2)
Congressional Power to Protect Religious Liberty	387	(1)
The Judicial Branch & Religious Liberty	387	(1)
Resolving Federalism and Separation of Powers Disputes Over the Meaning of the Incorporated Religious Liberty Guarantee	388	(1)
The Structure of a Separation of Powers Analysis	388	(1)
The Fourteenth Amendment and Its Impact on the Powers of congress, the Federal Judiciary, and the States	389	(1)
The Religious Freedom Restoration Act	390	(1)
Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb-4	391	(4)
Notes	395	(2)
Religion in the Classroom	397	(144)
Introduction	397	(8)
Characterization: Selecting an Appropriate Level of Generality and Mode of Interpretation	399	(1)
Possible Characterizations of the Issues---and of the Case---in a Case Involving Education	399	(1)
Exercise: Characterizing a Case Having Religious & Educational Elements	399	(2)
Questions Arising From Alternative Characterizations of Issues in Cases Involving Education	401	(2)
Differentiating State and Federal Roles	403	(2)
The Relationship of Religion to Public and Private Education	405	(12)
The Nature of Education	405	(4)
Stone v. Graham	409	(2)
Notes	411	(5)
What Are the State's Interests in Education?	416	(1)
Questions of Control	417	(17)
Who Controls Education?	418	(1)
State Law Issues	418	(1)
Federal Authority over State Education Policy	419	(1)
The Rights of Parents and Children in American Constitutional Law	420	(1)
Meyer v. Nebraska	420	(2)
Notes	422	(3)
Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary	425	(1)
Notes	426	(1)
Characterizing the Interests in Meyer & Pierce	427	(4)
International Law: The Emerging Contours of the Rights of Children and their Parents	431	(3)
``Opting-In'' vs. ``Opting Out:'' The Substantive Implications of Meyer, Pierce and Yoder	434	(44)
The Requirement that the States Maintain a ``Uniform'' System of Public Education	434	(1)
The Concept of ``Uniformity''	435	(1)
Uniformity Requirements and Disputes Over Control & Financing	435	(3)
``Opting-Out''--Regulating Church-Based Education: Reconsidering the concept of ``Absolute Separation''	438	(1)
Notes	438	(1)
Nebraska ex rel. Douglas v. Faith Baptist Church	439	(1)
Notes	440	(4)
Regulating Church-Related and Home Schools	444	(1)
Immunity from Regulation	445	(1)
Selecting an Appropriate Level of Generality	445	(1)
When are the State's Interests ``Compelling''?	445	(1)
Which Parental Interests Are Protected?	445	(1)
Submission to State Authority, Generally	446	(2)
Teacher Certification	448	(2)
Standardized Testing	450	(1)
Health and Safety Requirements	451	(1)
Penalties for Noncompliance	451	(1)
``Opting In:'' The State as Educator	452	(1)
Controlling the Content of Education	453	(1)
Curriculum & Access to Information	453	(1)
Board of Education, Island Trees Union Free School District No. 26 v. Pico	453	(3)
Notes	456	(1)
Creating a Religiously ``Neutral'' Educational Setting: Public Schools	457	(1)
Religious Devotions and Ritual	457	(1)
School District of Abington Township v. Schempp	457	(6)
Lee v. Weisman	463	(2)
Notes	465	(4)
Access to Religious Materials & Information	469	(1)
Limiting Religious Influences in the School and Classroom Setting	469	(1)
Cooper v. Eugene School District, No. 4J	470	(4)
Notes	474	(4)
Dual Enrollment Programs	478	(17)
Religious Training for Students Enrolled in Public Schools---Off-Premises ``Released Time''	478	(2)
Lanner v. Wimmer	480	(6)
Sharing the Cost and Responsibility for Providing Nonreligious Education Services for Students Enrolled in Private Schools	486	(2)
Public School Training for Students Enrolled in Private Schools---``Shared Time'' on Public School Premises	488	(3)
Notes	491	(2)
Sharing the Cost and Responsibility for Providing Secular Educational Services---``Shared Time'' on the Premises of Religiously Affiliated Schools	493	(2)
Financing Educational Options	495	(46)
Public Financing and Religious Schools: The View of the Supreme Court, Circa 1968-1980	495	(1)
Legal and Historical Background	495	(3)
Everson v. Board of Education: The Supreme Court ``Federalizes'' the Issue of Public School Finance	498	(1)
Taxpayer Standing: Articulating a Basis for Finding a Constitutionally Cognizable Interest	499	(2)
The Supreme Court on Aid to Religious Schools, 1968-2002	501	(2)
The Supreme Court on Support for Students Enrolled at Religiously Affiliated Schools (1947-2002)	503	(2)
School Choice: Privatization and the Quest for Family Control of Education	505	(1)
The Concept of ``School Choice''	505	(1)
Notes	506	(2)
Financing Education at Private Schools: Developing Case Law	508	(1)
Federal Case Law	508	(1)
Zelman v. Simmons-Harris	509	(14)
Notes	523	(1)
State Case Law: Federalism & the Establishment Clause	524	(1)
The Structural Aspects of the Non-Establishment Guarantee	524	(1)
State Constitutional Provisions Governing Aid to Religious Schools	524	(1)
Framing the Issues Under State Constitutional Law	525	(2)
Witters v. Washington Commission for the Blind	527	(10)
Notes	537	(1)
State Cases Decided After 1990: Calculating the Effect of Smith	538	(3)
The Structure, Management & Property of Churches and Religious Organizations	541	(86)
Introduction	541	(1)
Organizational Types	542	(7)
Common law forms	542	(1)
The Territorial Parish	542	(1)
The Common Law Corporation Sole	542	(1)
Statutory Organization Forms	542	(1)
Nonprofit Corporation Law: An Overview	542	(2)
The Charter Form	544	(1)
Application for Charter of the Conversion Center, Inc.	544	(3)
Notes	547	(1)
Trustee Corporation	548	(1)
Membership Corporations	548	(1)
Corporations Sole	548	(1)
Unincorporated Associations	549	(1)
Resolving Disputes within and among Religious Groups	549	(18)
The Search for Judicially Manageable Standards	551	(1)
The ``Neutral Principles'' Approach	551	(1)
Jones v. Wolf	551	(6)
Notes	557	(1)
What Qualifies as a ``Neutral Principle'' of Law?	557	(2)
The Implied Trust Theory: Does the First Amendment Prohibit Civil Courts from Making Findings Concerning ``Religious Facts''?	559	(2)
Abstention and Deference to Church Hierarchy: The Significance of Church Structure	561	(1)
Mandatory Deference: Congregational Churches	562	(1)
Mandatory Deference to Church Authority: Hierarchical Churches	563	(1)
Notes	563	(2)
Reconsidering the ``Neutral Principles Method''	565	(2)
Ordinary Civil Liability: Utilizing the First Amendment as a Defense to Liability in Tort or Contract	567	(19)
The Nature of the Interests Involved in Tort Litigation	567	(1)
Defining the Relationships in Tort Cases	568	(2)
Ascending Liability	570	(1)
Barr v. The United Methodist Church	570	(4)
Charitable Immunity	574	(1)
A Note on Liability Theories	575	(1)
Respondeat Superior	575	(2)
Seeking the ``Deep Pocket:'' Ascending Liability	577	(1)
Moses v. Diocese of Colorado	577	(8)
Notes	585	(1)
Zoning and Historic Preservation as Limits on Religious Freedom	586	(22)
Zoning & Land Use Planning	586	(1)
Seward Chapel, Inc. v. City of Seward	587	(4)
Cohen v. City of Des Plaines	591	(5)
Notes	596	(2)
Historic Preservation	598	(1)
First Covenant Church of Seattle v. City of Seattle	598	(9)
Notes	607	(1)
Bankruptcy, Receivership & Other Forms of Fiscal or Organizational Oversight	608	(4)
Bankruptcy	608	(1)
A Brief Overview	608	(1)
Recovery of Tithes and Other Contributions	609	(2)
Notes	611	(1)
Operational Oversight by the Attorney General	612	(15)
Weaver v. Wood	613	(2)
Word of Faith World Outreach Center Church, Inc. v. Morales	615	(5)
Notes	620	(1)
Greek Orthodox Archdiocese of North and South America v. Abrams, Attorney General	621	(3)
Notes	624	(1)
The ``Public Policy'' Requirement	625	(2)
Religion in the Workplace	627	(88)
Introduction	627	(1)
The Law of Workplace Relationships	627	(1)
Terminology	628	(1)
An Overview of Statutory and Constitutional Rules Prohibiting Religious Discrimination in Employment	629	(17)
Constitutional Rules Prohibiting Workplace Discrimination	631	(1)
The Government Workplace	631	(1)
The Private Workplace	632	(1)
The Supreme Court on Religious Liberty in the Workplace	633	(1)
Braunfeld v. Brown	633	(4)
Notes	637	(1)
Estate of Thornton v. Caldor, Inc.	637	(3)
Note	640	(2)
Title VII of the Civil Rights Act of 1964: Equal Employment Opportunity	642	(1)
Representation Cases	642	(2)
Disparate Impact	644	(1)
Hostile Work Environments	645	(1)
The National Labor Relations Act	646	(1)
The Religious Workplace	646	(30)
Jurisdictional Issues	646	(1)
Developing a Theory of Abstention	647	(1)
National Labor Relations Board v. Catholic Bishop of Chicago	647	(5)
Notes	652	(2)
Developments Since NLRB v. Catholic Bishop: Labor Cases	654	(6)
Application of Catholic Bishop of Chicago in Labor Settings outside the Collective Bargaining Context	660	(1)
The Fair Labor Standards Act	660	(1)
Tony and Susan Alamo Foundation v. Secretary of Labor	660	(1)
Notes	661	(1)
Jurisdiction Under Title VII of the Civil Rights Act of 1964	662	(3)
Identifying the Religious Employer	665	(2)
Notes	667	(2)
Operational Issues	669	(1)
Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos	670	(5)
Notes	675	(1)
The Americans with Disabilities Act and Religious Organizations	675	(1)
The Secular Workplace	676	(31)
Jurisdiction	676	(1)
When Is a Workplace ``Secular''?	677	(1)
EEOC v. Townley Engineering & Manufacturing Co.	677	(6)
Notes	683	(1)
Operational Issues	684	(1)
Rosen v. Thornburgh	684	(3)
Notes	687	(4)
An Employer's Duty to Accommodate under Title VII	691	(2)
The Scope of the Duty to Accommodate	693	(1)
Trans World Airlines, Inc. v. Hardison	693	(5)
Ansonia Board of Education v. Philbrook	698	(2)
Notes	700	(2)
Mandatory v. Negotiated Accommodations	702	(2)
Statutes Addressing Specific Religious Concerns	704	(3)
The Government Workplace	707	(8)
The Test Clause of Article VI	708	(1)
What is a ``Religious Test or Qualification''?	709	(1)
What is an ``Office...under the United States''?	710	(1)
What is a ``Public Trust''?	711	(1)
Notes	712	(1)
Statutory and Administrative Claims	712	(1)
Conscientious Objection to Regulatory and Investigatory Assignments	713	(1)
Procedural Requirements	713	(2)
The Taxation of Churches, Charities & Their Affiliates	715	(76)
Introduction	715	(2)
Distinguishing Theory and Practice: A Preliminary Note on Methodology	715	(1)
Ascertaining the Character of the Issue	716	(1)
Definitions & Terminology	717	(3)
What Is a `Tax'?	717	(1)
Types of Taxes	718	(1)
Note	719	(1)
Does the State Have the Power to Tax the Church?	720	(19)
The Power to Tax	720	(1)
State and Federal Jurisdiction to Tax Churches and Reigious Activities	721	(2)
Jimmy Swaggart Ministries v. Board of Equalization of California	723	(4)
Notes	727	(5)
United States v. Lee	732	(3)
Notes	735	(1)
Historical Note on the Origin and Development of Tax Policy Affecting the Property and Activities of Religious Institutions	736	(3)
Federal and State Tax Policy Affecting Churches, Charities and Religious Organizations: An Overview	739	(26)
A Short History of the Federal Tax Structure and Its Impact on Religious Organizations	740	(1)
The Revenue Act of 1894	741	(1)
The Internal Revenue Code	741	(1)
Which Functions are Exempt?	742	(1)
Income Producing Activities	742	(1)
Exempt Function Income	743	(1)
Religious Activity as an Exempt Function	743	(1)
What Is a `Church'?	744	(1)
Church of Eternal Life and Liberty, Inc. v. Commissioner	745	(3)
What Is a ``Religious Organization''?	748	(1)
Other Exempt Activities	749	(1)
What Is a ``Charity''?	750	(1)
The Requirement of ``Public Benefit''	751	(1)
Generally	751	(1)
``Purely Public'' Charities	752	(2)
Distinguishing Between `Religious' and `Charitable' Uses	754	(2)
The Requirement That the Purpose or Activity be ``consistent with Public Policy''	756	(1)
Bob Jones University v. United States	757	(6)
Notes	763	(2)
Does the First Amendment Require the Exercise of the Taxing Power?: constitutional Limits on the Power of Legislatures to Exempt Churches and Religious Institutions from Taxes of General Applicability	765	(26)
What Is a Tax ``Exemption''?	766	(1)
Subsidy Theory: Are Tax Exemptions Subsidies?	767	(1)
Tax Exemptions as ``Contributions'' to Exempt Organizations	767	(3)
Notes	770	(4)
``Tax Expenditure'' Theory and Its Impact in the Courts	774	(1)
What Is a ``Tax Expenditure''?	774	(1)
Differentiating ``Revenue'' from ``Social and Economic'' Goals: What Are the Characteristics of a ``Tax Expenditure''?	775	(2)
The Constitutional Implications of Tax Expenditure Analysis	777	(1)
Applying Theory to Practice: Tax Subsidy Theory in the Courts	778	(1)
Texas Monthly, Inc. v. Bullock	779	(7)
Notes	786	(5)
The Secular State, Civil Society and Religious Morality	791	(70)
Political Participation by Religious Adherents	792	(21)
Notes	792	(3)
McDaniel v. Paty	795	(6)
Notes	801	(1)
Wallace v. Jaffree	802	(4)
Edwards v. Aguillard	806	(5)
Notes	811	(2)
Evolution Redux	813	(11)
Mozert v. Hawkins County Board of Education	815	(5)
Notes	820	(4)
Anti-Discrimination Laws and Religious Convictions	824	(29)
Swanner v. Anchorage Equal Rights Commission	825	(9)
State v. French	834	(10)
Notes	844	(3)
Randall v. Orange County Council, Boy Scouts of America	847	(5)
Notes	852	(1)
Religious Liberty in the Military	853	(8)
Katcoff v. Marsh	853	(6)
Notes	859	(2)
Autonomy, Religious Practice and Governmental Regulation	861	(66)
The Right of Ideological Nonassociation	861	(8)
Wooley v. Maynard	861	(3)
Torcaso v. Watkins	864	(2)
Notes	866	(3)
Individual Autonomy Expressed in Religious Practices	869	(11)
State ex rel. Swann v. Pack	869	(6)
Notes	875	(1)
John F. Kennedy Memorial Hospital v. Heston	876	(2)
Notes	878	(2)
Religious Practices, The Family and the State as Parent	880	(19)
Prince v. Massachusetts	880	(6)
Notes	886	(2)
Commonwealth v. Twitchell	888	(4)
Notes	892	(4)
Burnham v. Burnham	896	(2)
Notes	898	(1)
Religion as an Affirmative Defense to Governmental Regulation	899	(28)
Religious Institutions and Officers and Tort Law	899	(2)
Litigating Religion Clause Defenses to Tort Claims	901	(2)
Schieffer v. Catholic Archdiocese of Omaha	903	(4)
Notes	907	(1)
Molko v. Holy Spirit Ass'n for the Unification of World Christianity	908	(6)
Notes	914	(2)
Religious Institutions and Officers and Criminal Law	916	(1)
United States v. Moon	916	(5)
Note	921	(1)
Civil Law and Religious Benefits	921	(1)
Schwartz v. Schwartz	922	(3)
Notes	925	(2)
Religion in the Courtroom	927	(58)
Introduction	927	(5)
United States v. Kalaydjian	928	(2)
Notes	930	(2)
Juries and Religion	932	(14)
Introduction	932	(1)
Jury Service and Religion	932	(1)
State v. Davis	933	(4)
Notes	937	(2)
Challenging Jury Verdicts as Impermissibly based on Religious Beliefs	939	(1)
Jones v. Kemp	939	(3)
Notes	942	(1)
State v. DeMille	943	(3)
Notes	946	(1)
Judging by Religious Faith	946	(6)
United States v. Bakker	947	(1)
Notes	948	(4)
References to Religion by Lawyers	952	(7)
Commonwealth v. Chambers	952	(2)
Notes	954	(5)
Lawyers and Religious Garb	959	(6)
LaRocca v. Gold	959	(5)
Notes	964	(1)
Confidential Communications to Clergy	965	(13)
In re Grand Jury Investigation	965	(9)
Notes	974	(4)
Issues of Religion in Criminal Prosecutions	978	(7)
Levin v. United States	978	(5)
Notes	983	(2)
Defining Religion	985	(48)
Introduction	985	(15)
Hygrade Provision Co. v. Sherman	987	(2)
Notes	989	(2)
United States v. Ballard	991	(6)
Notes	997	(3)
Selective Service and Religious Conscientious Objection	1000	(20)
United States v. Seeger	1001	(9)
Notes	1010	(3)
Welsh v. United States	1013	(6)
Notes	1019	(1)
Defining Religion After Seeger and Welsh	1020	(13)
Malnak v. Yogi	1022	(8)
Notes	1030	(2)
Conclusion	1032	(1)
Possible Meaning of the Terms ``Religion'' or ``Religious''	1032	(1)
The Constitution of the United States	1033	(16)
The United Nations Universal Declaration of Human Rights	1049	(2)
Index	1051