Tag: Religion

Talking “Religious, Superstitious Nonsense” in the Classroom: When Do Teachers’ Disparaging Comments About Religion Run Afoul of the Establishment Clause? – Note by Jennifer L. Bryant

From Volume 86, Number 6 (September 2013)
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A sizable contingent of Christians in America are profoundly anxious, not only because of a fear that Christianity is losing its grip on the culture, but also because of a perception that religious faith has become an acceptable target for scorn and ridicule. This anxiety, though ever present, inevitably intensifies whenever the religious right is dealt a political setback. Predictably, then, the rhetoric of religious victimhood began to escalate after Barack Obama won the presidency. America, it would seem, is now embattled in a full-fledged “war on Christianity.” These feelings stem in part from the rapidly changing religious landscape. The ranks of the religiously unaffiliated have been steadily swelling in recent years. In 2012 Pew found that one-fifth of Americans—and one-third of those under thirty—claim no religious affiliation, a marked increase from just five years earlier.

But the alarmist rhetoric nevertheless strikes many as unjustified and even a little silly. For one thing, President Obama has, of course, spoken about his personal Christian faith on more than one occasion. A man who publicly testifies that Jesus Christ has died for his sins makes for a curious leader in a crusade against Christianity. In addition, almost 75 percent of Americans still identify as Christians and the ranks of atheists and agnostics, though increasing, are still rather negligible. Unsurprisingly, then, many find it difficult to get behind the notion that religion in general or Christianity in particular is under legitimate attack. When voiced against a backdrop of two centuries of uninterrupted representation at the highest levels of government, the grievances of the supposedly victimized Christian majority are hard to take seriously. As a result, the gripes from religious conservatives often spur a self-fulfilling and even self-exacerbating cycle, as the complaints themselves become sources of ridicule and the feelings of victimization redouble. But while the popular discourse is dominated by a back and forth between hyperbolic bombast on one side and bewildered scoffing on the other, religious persecution is, of course, no laughing matter. Moreover, what “may seem [like] silly or wrong-headed” sensitivity to some is a deeply felt, “sincerely held . . . belief” to others.

 

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Closing a Loophole: Headley V. Church of Scientology International as an Argument for Placing Limits on the Ministerial Exception from Clergy Disputes – Note by Molly A. Gerratt

From Volume 85, Number 1 (November 2011)
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In 2009, Marc and Claire Headley sued the Church of Scientology International and its affiliate, Religious Technology Center, for violating the Trafficking Victims’ Protection Act (“TVPA”) and for forcing Claire to undergo two abortions. The case was thrown out at the summary judgment phase because the Headleys were considered “ministers” of the Church of Scientology. Under the judicially created “ministerial exception”—an exemption never explicitly endorsed by the U.S. Supreme Court—ministers are barred from suing their religious employer for disputes arising during the course of their employment. Because of the ministerial exception, the Headleys’ accusations have gone uninvestigated, potentially allowing the Church to continue to inflict horrific treatment on other “ministers” in its ranks. This Note begins by analyzing the current state of the exemption and its limits. Utilizing Headley as a case study, this Note concludes that the current limits on the ministerial exception are inadequate and proposes that courts consider the “harm principle” as a limiting doctrine on the exemption. This limiting principle would force the courts to consider physical and societal injuries caused by religious institutional behavior in the ministerial employment relationship in their constitutional inquiries. During the production of this Note, the U.S. Supreme Court heard argument and decided a case concerning the ministerial exception. A brief epilogue addresses the decision and its implications on the limitation set forth in this Note. 

 

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A Political Process Theory of Judicial Review Under the Religion Clauses – Note by Carlton Morse

From Volume 80, Number 4 (May 2007)
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Few areas of constitutional law remain more captive to the subjective whims of judicial preference than the First Amendment’s religion clauses. This condition results in part from the Court’s notorious inability to agree on a uniform standard of review under either the Free Exercise or Establishment Clauses. This instability matters because, as Justice Scalia notes, “[w]hat distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.” As concerns the religion clauses, a stabilizing principle may be found in political process theory, a set of ideas that, while generally familiar to constitutional theory, have yet to be comprehensively applied to either free exercise or establishment controversies.

Process theory embraces “[t]he notion that courts should exercise judicial review almost exclusively to protect democracy and guarantee the fairness of legal processes.” Conversely, process theory rejects the notion that courts should enforce “substantive” policy preferences that cannot be justified on these “process-oriented” grounds, as they are more properly left to the vicissitudes of the political branches. Borrowing heavily from the literature of civic republicanism, this Note argues that process theory should be broadened to account for the unique contributions of religion to the political process. This Note further argues that, using process theory, courts should interpret the First Amendment’s religion clauses as process-oriented safeguards for the political contributions of religious faith and institutions. Finally, courts should reject a jurisprudence that employs the religion clauses as vehicles for the enforcement of substantive conceptions of free exercise and disestablishment.

 

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