Explore the vast range of titles available.

Steven K. Green, renowned for his scholarship on the separation of church and state, charts the career of the concept and helps us understand how it has fallen into disfavor with many Americans. In 1802, President Thomas Jefferson distilled a leading idea in the early American republic and wrote of a wall of separation between church and state. That metaphor has come down from Jefferson to twenty-first-century Americans through a long history of jurisprudence, political contestation, and cultural influence. This book traces the development of the concept of separation of church and state and the Supreme Court's application of it in the law. Green finds that conservative criticisms of a separation of church and state overlook the strong historical and jurisprudential pedigree of the idea. Yet, arguing with liberal advocates of the doctrine, he notes that the idea remains fundamentally vague and thus open to loose interpretation in the courts. As such, the history of a wall of separation is more a variable index of American attitudes toward the forces of religion and state. Indeed, Green argues that the Supreme Court's use of the wall metaphor has never been essential to its rulings. The contemporary battle over the idea of a wall of separation has thus been a distraction from the real jurisprudential issues animating the contemporary courts.

Leading accounts of the First Amendment's Religion Clauses fail to provide a coherent and morally attractive position on whether religion warrants special treatment as compared with secular ethical and moral doctrines. Focusing on two central issues involving whether laws must have a secular purpose and whether religious exemptions are constitutionally mandatory, this Article rejects existing theories as either theoretically inconsistent or substantively mistaken. If religion does not warrant special treatment, then it is important to ask what our attitude should be toward the constitutional text. Under originalist theories of constitutional interpretation, the Religion Clauses should be considered morally regrettable. Under nonoriginalist theories, there may be interpretations of the text that allow for the possibility of moral reconciliation. Either way, rejecting the idea that religion is special requires reassessing our understanding of the Religion Clauses.

This article explores the connection between the ecclesiology and the beliefs on church-state relations of Baptists in the mid-twentieth-century United States. The author analyzes white Baptists’ reactions to the US Supreme Court rulings in Everson v. Board of Education (1947) and McCollum v. Board of Education (1948), both of which inaugurated the modern era of strict separationist Establishment Clause jurisprudence. The author also traces the development of Baptist beliefs on how the institutional church relates to individual salvation—beliefs that distinguished Baptists from both Catholics and most other Protestants—and statements from US Baptist leadership supporting church-state separation. The author demonstrates that Baptists’ beliefs on the internal, individualistic, and non-sacramental nature of salvation induced them to see any government-sponsored religious activity as likely corrupting of a person’s genuine choice of salvation. Furthermore, Baptists’ origins as a persecuted minority in Europe and the United States reinforced their idea that government-sponsored religion would lead to the suppression of true Christianity. For both reasons, then, state-sponsored religion was not God’s design. Beginning with Everson and McCollum and continuing with later cases through the 1960s, Baptist’s strict separationism became the binding interpretation of the First Amendment’s Establishment Clause through Justice Hugo Black, who authored both the Everson and McCollum majority opinions. Although no longer a Baptist when the rulings were issued, Black retained his Baptist influence on church-state issues and enshrined strict separationism into American case law for decades, leading to a Baptist triumph that many Baptists themselves would later regret and attempt to reverse.

In litigation under the Equal Protection, Free Exercise, Establishment, Free Speech, and dormant commerce clauses, among others, the Supreme Court sometimes inquires whether the legislature that enacted a challenged statute did so with a discriminatory or otherwise constitutionally forbidden intent. In a comprehensive reexamination of the nature and significance of forbidden legislative intentions, purposes, and motivations, this Article shows that the Court's references invoke varied senses of legislative intent, some of which are subjective and others objective, some of which are coherent and others of which are incoherent. The Article also demonstrates that the Court has provided disparate indications of the significance that should attach to a finding of forbidden intent. These include automatic statutory invalidation, the application of strict judicial scrutiny, and further inquiry into whether the legislature, absent a forbidden motivation, would have enacted the same statute anyway. After mapping confusions in current law, this Article argues that courts should never invalidate legislation solely because the legislature acted with forbidden intentions. Substantive tests of validity should ultimately determine constitutionality. Nevertheless, the Article defends a role for intent-based inquiries — pursuant to intelligibly specified rules for ascribing intentions to multimember bodies — in triggering elevated judicial scrutiny under some constitutional provisions.

Many, especially in the West, have long argued against state religious establishments on the ethical grounds of the rights of freedom of conscience and personal autonomy. Situating the question of religious establishment within the field of Religion and Security—an important and growing aspect of the Religious Studies discipline—allows for new interpretive possibilities. This paper explores the impact of religious disestablishment on the state’s task of provisioning security from violent religious extremism. Could it be that states which have disestablished a formal or deeply embedded informal tie with religion are less able to provide security to their citizenry? I examine this question and develop the contention that religious disestablishment in the West has actually harmed the state’s capacity to deal effectively with violent religious extremism. In turn, this finding requires us to reconsider the normative bases of strict church/state separation and provides one element within a range of arguments for what I label ‘weak disestablishment.’

Past U.S. Supreme Court rulings have held that schools and school employees must be careful to engage in religious activities while at school that could appear to endorse a particular religion above others or coerce students to engage in religious activities. However, the June 2022 Kennedy v. Bremerton School District opinion suggests that the current Court is far more concerned about violating school employees’ free exercise rights. In this case, the Court found that not allowing a football coach to pray, often with students, on the 50-yard line immediately following public school football games violated the coach’s religious free exercise rights. Robert Kim discusses the Court’s history with cases involving religious practice in schools and the potential implications of the Kennedy decision.

This paper builds upon and extends Christian and legal scholarship on the civil rights movement by illuminating a climate of religious freedom that served as a catalyst for and was integral to the success of the spirited activism of the civil rights movement. To date, scholars have not extensively considered how the expansion of religious freedom in church and state jurisprudence both directly and indirectly created a climate that contributed to the success of the CRM, and how advancements in civil rights impacted the broader revolution occurring in constitutional rights. The climate of religious freedom included court support for evangelizing in residentially exclusive areas, exemptions for conscientious opposers from participating in oath swearing and other ceremonies, and exemptions from other general laws that unduly inhibited the free exercise of religious rights.

In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (for example, by fighting in a war). In the religious challenges to the Affordable Care Act's employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (for example, by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than the standard that legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund military initiatives or to university fees that support abortion services. In Hobby Lobby, however, the Supreme Court took the corporate owners at their word: the mere fact that Hobby Lobby believed that it would be complicit, no matter how idiosyncratic its belief, sufficed to qualify it for an exemption. In this way, the Court made elements of an employee's health-care package the \"boss's business\" (to borrow from the nickname of the Democrats' proposed bill to overturn Hobby Lobby). Much of the critical reaction to Hobby Lobby focuses on the issue of corporate rights of religious freedom. Yet this issue is a red herring. The deeper concerns that Hobby Lobby raises—about whether employers may now refuse, on religious grounds, to subsidize other forms of health coverage (for example, blood transfusions or vaccinations) or to serve customers whose lifestyles they deplore (for example, gays and lesbians)—do not turn on the organizational form that the employer has adopted. Instead, the more significant issue goes to our understanding of complicity: When is it reasonable for an employer (for-profit or nonprofit, corporate or individual) to think itself complicit in the conduct of its employees or customers? And when is a reasonable claim of complicity compelling enough to warrant an accommodation, especially when that accommodation would impose costs on third parties? Hobby Lobby does not provide the proper guidance for answering these questions, and no wonder: as I argue here, the concept of complicity pervading the treatment of conscientious objection in the law is murky and misleading, and it often yields unjust results. This Article offers the guidance that the doctrine does not. To that end, it exposes the flaws in the understandings of complicity evident in both the majority and dissenting opinions in Hobby Lobby, as well as in Religious Freedom Restoration Act cases more generally. It then seeks to disaggregate the elements of a complicity claim and to identify which of these elements deserves to be treated deferentially. Deference, however, is not decisive. The Article's second ambition is to expose an oversight in the law's treatment of conscientious objection—namely, its failure to inquire into how a religious accommodation will affect third parties. Exemption opponents contend that the law already requires courts to deny an accommodation when the accommodation would impose substantial burdens on third parties. I believe that these opponents have a mistaken and overly sanguine view of the protection that the doctrine currently affords. I end the Article by proposing a revised balancing test—one that reflects a far more nuanced grasp of what is at stake for the objector while yielding far more just outcomes for third parties.

Few controversies involving public schools have been more volatile than those pertaining to religious issues. Since the mid20th century, schools have been the setting for some major church-state decisions rendered by the U.S. Supreme Court.

Contemporary case law in the United States surrounding the establishment clause of the federal Constitution has entered a period of remarkable uncertainty. Now is an appropriate time to revisit the legal foundations of the Supreme Court’s seminal cases of Everson v. Board of Education (1947) and McCollum v. Board of Education (1948). These cases initiated the Court’s strict separationist construction of the establishment clause. In response to critics who see these cases as without judicial warrant, I argue that the holdings rest on a particular form of substantive due process. Further, I defend the methodology the Court deploys in these cases. Recognizing the legal foundations of Everson and McCollum and the tenability of the method the Court deploys in these cases improves our understanding of important Supreme Court case law. However, it also highlights new lines of critique of the Court’s strict separationist jurisprudence—a conclusion especially relevant today, given the Court’s willingness to revise long-standing precedents.