ASHUTOSH BHAGWAT
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195377781
- eISBN:
- 9780199775842
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195377781.003.006
- Subject:
- Law, Constitutional and Administrative Law
In addition to the speech, press, assembly, and petition clauses, the First Amendment to the U.S. Constitution contains two provisions dealing with the subject of religion: the Establishment Clause ...
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In addition to the speech, press, assembly, and petition clauses, the First Amendment to the U.S. Constitution contains two provisions dealing with the subject of religion: the Establishment Clause and the Free Exercise Clause. They read as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Clearly, the religion clauses are intended to severely restrain Congress's power to legislate in the area of religion; but are the restrictions on Congress in this area absolute, or limited? More specifically, what restrictions are placed on Congress? When is it that a law can be said to touch on religion; is it only when the law mentions religion, or are there other laws that might fall within the limitations imposed by the religion clauses? And how are the sometimes seemingly contradictory commands of the Establishment and Free Exercise clauses to be reconciled? Finally, and most importantly, how does a structural approach to constitutional interpretation contribute to our understanding of these issues? These are the questions explored in this chapter.Less
In addition to the speech, press, assembly, and petition clauses, the First Amendment to the U.S. Constitution contains two provisions dealing with the subject of religion: the Establishment Clause and the Free Exercise Clause. They read as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Clearly, the religion clauses are intended to severely restrain Congress's power to legislate in the area of religion; but are the restrictions on Congress in this area absolute, or limited? More specifically, what restrictions are placed on Congress? When is it that a law can be said to touch on religion; is it only when the law mentions religion, or are there other laws that might fall within the limitations imposed by the religion clauses? And how are the sometimes seemingly contradictory commands of the Establishment and Free Exercise clauses to be reconciled? Finally, and most importantly, how does a structural approach to constitutional interpretation contribute to our understanding of these issues? These are the questions explored in this chapter.
Brian H. Bornstein and Monica K. Miller
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195328677
- eISBN:
- 9780199869954
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328677.003.009
- Subject:
- Psychology, Forensic Psychology
Litigants' religion is central to some cases, such as those making a free exercise claim; a substantial factor in others, such as clergy charged with sexual abuse, defendants who introduce their ...
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Litigants' religion is central to some cases, such as those making a free exercise claim; a substantial factor in others, such as clergy charged with sexual abuse, defendants who introduce their religious conversion to mitigate sentencing, or those who use religion as a defense (e.g., a parent who refused to seek medical treatment for a child on religious grounds); and a peripheral factor in most routine cases. Although a litigant's religion is not relevant in these routine cases, it might nonetheless come up if the person has a religious occupation, and it could also be inferred from a person's surname or dress. This chapter addresses the role of litigants' religion.Less
Litigants' religion is central to some cases, such as those making a free exercise claim; a substantial factor in others, such as clergy charged with sexual abuse, defendants who introduce their religious conversion to mitigate sentencing, or those who use religion as a defense (e.g., a parent who refused to seek medical treatment for a child on religious grounds); and a peripheral factor in most routine cases. Although a litigant's religion is not relevant in these routine cases, it might nonetheless come up if the person has a religious occupation, and it could also be inferred from a person's surname or dress. This chapter addresses the role of litigants' religion.
Brian H. Bornstein and Monica K. Miller
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195328677
- eISBN:
- 9780199869954
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195328677.003.006
- Subject:
- Psychology, Forensic Psychology
This chapter reviews social scientific research on the relationship between judges' religion and their decisions. It begins with a historical perspective on the role of religion in judicial selection ...
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This chapter reviews social scientific research on the relationship between judges' religion and their decisions. It begins with a historical perspective on the role of religion in judicial selection (e.g., Catholic and Jewish seats on the U.S. Supreme Court). Next it reviews research on the relationship between judges' religious beliefs and their decisions, in both trial and appellate courts, and describes cases in which judges have explicitly invoked religion in sentencing. Judges have done this, for example, in sentencing defendants to attend religious services or in quoting religious texts to justify a particular sentence.Less
This chapter reviews social scientific research on the relationship between judges' religion and their decisions. It begins with a historical perspective on the role of religion in judicial selection (e.g., Catholic and Jewish seats on the U.S. Supreme Court). Next it reviews research on the relationship between judges' religious beliefs and their decisions, in both trial and appellate courts, and describes cases in which judges have explicitly invoked religion in sentencing. Judges have done this, for example, in sentencing defendants to attend religious services or in quoting religious texts to justify a particular sentence.
Frank S. Ravitch
- Published in print:
- 2012
- Published Online:
- November 2015
- ISBN:
- 9780231140201
- eISBN:
- 9780231530781
- Item type:
- chapter
- Publisher:
- Columbia University Press
- DOI:
- 10.7312/columbia/9780231140201.003.0008
- Subject:
- Religion, Religion and Society
This chapter surveys some of the major eras and events involving law and religion in American history. The history of law and religion in the United States has been used to argue both for and against ...
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This chapter surveys some of the major eras and events involving law and religion in American history. The history of law and religion in the United States has been used to argue both for and against the separation of church and state. Numerous decisions by the U.S. Supreme Court reflect this use of history. In 1940, the Supreme Court decided Cantwell v Connecticut, which incorporated the Free Exercise Clause through the Fourteenth Amendment. Seven years later, the Court decided Everson v Board of Education (1947), which incorporated the Establishment Clause. Incorporation was key to the current era of law and religion. This chapter begins with an overview of law and religion in the colonies and the United States during the period 1750–1870 before turning to the years 1870–1940 and the post-incorporation era from 1940/1947 to the present.Less
This chapter surveys some of the major eras and events involving law and religion in American history. The history of law and religion in the United States has been used to argue both for and against the separation of church and state. Numerous decisions by the U.S. Supreme Court reflect this use of history. In 1940, the Supreme Court decided Cantwell v Connecticut, which incorporated the Free Exercise Clause through the Fourteenth Amendment. Seven years later, the Court decided Everson v Board of Education (1947), which incorporated the Establishment Clause. Incorporation was key to the current era of law and religion. This chapter begins with an overview of law and religion in the colonies and the United States during the period 1750–1870 before turning to the years 1870–1940 and the post-incorporation era from 1940/1947 to the present.
Frank Pommersheim
- Published in print:
- 2012
- Published Online:
- April 2015
- ISBN:
- 9780199915736
- eISBN:
- 9780190260262
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:osobl/9780199915736.003.0007
- Subject:
- Law, Constitutional and Administrative Law
This chapter discusses the struggles of the US Congress in locating Indian religious practices within and without protection of the Free Exercise Clause of the First Amendment of the Constitution. It ...
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This chapter discusses the struggles of the US Congress in locating Indian religious practices within and without protection of the Free Exercise Clause of the First Amendment of the Constitution. It takes on the issue of whether there are any notable free exercise issues involving Indians in the context of potential infringement by tribal government restrictions. The chapter also investigates the rationale behind the decision in Talton v. Mayes regarding the issue, and analyzes past procedures on how free exercise of religion were “regulated” in the eighteenth and nineteenth centuries. Additionally, it focuses on the possibility of government discrimination against traditional Indian religious practices.Less
This chapter discusses the struggles of the US Congress in locating Indian religious practices within and without protection of the Free Exercise Clause of the First Amendment of the Constitution. It takes on the issue of whether there are any notable free exercise issues involving Indians in the context of potential infringement by tribal government restrictions. The chapter also investigates the rationale behind the decision in Talton v. Mayes regarding the issue, and analyzes past procedures on how free exercise of religion were “regulated” in the eighteenth and nineteenth centuries. Additionally, it focuses on the possibility of government discrimination against traditional Indian religious practices.
Mark David Hall
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199929849
- eISBN:
- 9780199980574
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199929849.003.0006
- Subject:
- Religion, Religion and Society
Sherman was elected to the House of Representatives for the first federal Congress, and in 1791 he was appointed to the U.S. Senate. He made important contributions in debates over representation, ...
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Sherman was elected to the House of Representatives for the first federal Congress, and in 1791 he was appointed to the U.S. Senate. He made important contributions in debates over representation, executive power, revenue, the assumption of state debt, the proper scope of the national government, and, especially, the Bill of Rights. His views are particularly relevant for helping jurists and scholars properly interpret the First Amendment. The chapter concludes by considering his final days.Less
Sherman was elected to the House of Representatives for the first federal Congress, and in 1791 he was appointed to the U.S. Senate. He made important contributions in debates over representation, executive power, revenue, the assumption of state debt, the proper scope of the national government, and, especially, the Bill of Rights. His views are particularly relevant for helping jurists and scholars properly interpret the First Amendment. The chapter concludes by considering his final days.
