Religion and law in the USA / Elizabeth A. Clark, Brett G. Scharffs.
2016
KF4865 .C53 2016 (Map It)
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Author
Title
Religion and law in the USA / Elizabeth A. Clark, Brett G. Scharffs.
Published
Alphen aan den Rijn, The Netherlands : Wolters Kluwer, [2016]
Call Number
KF4865 .C53 2016
ISBN
9789041167644
9041167641
9041167641
Description
370 pages ; 24 cm
System Control No.
(OCoLC)948560614
Note
"Originally published as a monograph in the International encyclopaedia of laws/religion."
Bibliography, etc. Note
Includes bibliographical references (pages 345-364) and index.
Record Appears in
Gift
Purchased from the income of the Edith L. Fisch Fund
Added Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Edith L. Fisch Fund
Table of Contents
Authors
3
List of Abbreviations
21
Preface
25
General Introduction
27
1.
General Background Of The Country
27
I.
Basic Structures
27
II.
General Legal System
28
2.
Social Facts About Religion
31
I.
Official Census
31
II.
Religious Demographics
31
III.
Religious Trends
32
IV.
Historic Patterns
33
V.
Native Americans
34
VI.
Home-Grown Religious Movements
35
VII.
Islam
37
VIII.
Composition of Supreme Court
38
IX.
Political Alignment over Social Issues
38
3.
Historical Background
38
I.
Religion in America in the Colonial Period
38
II.
Revolutionary War and the Great Awakenings
41
III.
Anti-slavery and the Civil War
44
IV.
Civil War through New Deal (1865-1933)
45
V.
World War II Era Forward
48
Part I Legal Framework and Sources
51
ch. 1
Constitutional Position of Religion
51
1.
Federal Constitution
51
2.
State Constitutions
53
ch. 2
Other Legislation with Regard to Religion
57
1.
Federal Laws
57
I.
Religious Freedom Restoration Act
57
II.
Civil Rights Act of 1964
58
III.
Internal Revenue Code
59
IV.
Religious Land Use and Institutionalized Persons Act
59
V.
International Religious Freedom Act
59
VI.
Laws Providing for Conscientious Objection
60
VII.
Social Security Act
60
VIII.
Affordable Care Act (ACA)
61
IX.
Other Federal Laws
61
2.
State Laws
62
I.
Religious Freedom Restoration Acts
62
II.
Blaine Amendments
62
III.
Religious Corporation and Corporation Sole Statutes
62
IV.
Child Abuse Reporting and the Priest-Penitent Privilege in State Law
63
V.
Antidiscrimination Laws
63
VI.
Laws Prohibiting Foreign Law
63
ch. 3
Typology of the System
64
1.
Establishment Clause
64
2.
Free Exercise Clause
65
Part II Religious Freedom in General
67
ch. 1
Individual Religious Freedom
67
1.
Constitutional Frameworks
67
2.
Core Domain Of Conscience
68
3.
Speech And Propagation
68
4.
Limitations On Religious Actions And Manifestations
69
I.
Overview
69
II.
Belief/Action Dichotomy: Reynolds
69
III.
Compelling State Interest Test: Sherbert and Yoder
70
IV.
Generally Applicable Laws: Smith
72
V.
Federal Reaction to Smith: The Religious Freedom Restoration Act, Boerne, and The Religious Land Use and Institutionalized Persons Act
72
VI.
State Responses to Smith and Boerne
73
5.
Conscientious Objection
76
I.
Protections for Conscientious Objection to Military Service
76
II.
Conscientious Objection in Provision of Medical Services
77
ch. 2
Collective Religious Freedom
79
1.
Freedom Of Association
79
2.
Freedom Of Worship And The Collective Dimension
80
3.
Conscientious Objection
80
4.
Separation Of Church And State
81
5.
Free Exercise And The Compelling State Interest Test
82
6.
Church Autonomy
82
7.
Church Employment
83
8.
Indigenous Peoples
84
9.
Collective Dimension Of Individual Freedoms
86
ch. 3
Organizational Religious Freedom
88
1.
Right To Religious Schools
88
2.
Church Finances
88
3.
Church Autonomy
89
Part III Legal Status of Religious Communities
91
ch. 1
Formal Status of Religious Communities
91
1.
Registration And Incorporation
91
I.
No Formal Registration Required
91
II.
Forms of Religious Organizations
92
III.
Mechanics of Registration
94
IV.
Role of State Attorneys General in Oversight
94
2.
Definition Of Religion
95
I.
Categories of Definitions
95
A.
Essentialist
95
B.
Functionalist
95
C.
Limited Deference
96
II.
Church of Scientology Cases
96
III.
Tax-exempt Status
97
IV.
'Church'
98
ch. 2
Autonomy of Religious Communities
100
1.
General Principles
100
I.
Separation of Religion and the State
100
II.
Significance of Non-entanglement
101
III.
Core Realm/Almost Jurisdictional
102
IV.
Autonomy Grounded in Establishment or Free Exercise Clause
102
2.
Intra-Church Disputes
104
I.
Church Property Disputes
104
II.
Disputes over Leadership
104
III.
Ministerial Exception
105
IV.
Exemptions from Employment Non-discrimination Laws
106
V.
Church Names
107
VI.
Rights of Membership
107
VII.
Failure to Follow Internal Procedures
109
ch. 3
Fundamental Rights and Religious Communities
110
1.
'Compelling State Interest' Test Versus 'General And Neutral Laws'
110
2.
Religious Schools
111
ch. 4
Contractual Religious Freedom
114
1.
Employment Nondiscrimination Laws And Exceptions
114
I.
Title VII of the Civil Rights Act of 1964
115
II.
Title VII Protections for Individuals
115
III.
Exemptions from Title VII for Religious Institutions
116
IV.
Bona Fide Occupational Qualification Exception
117
V.
Other Protections
117
VI.
State Laws
118
2.
Religious Objections To Unions
119
I.
Church Objections
119
II.
Individual Objections
119
3.
Arbitration Clauses Incorporating Religious Law
120
Part IV International, Transnational, Regional Effects on Religious Communities
121
ch. 1
International Law Effects on Religious Communities
121
1.
Basic Principles Of International Law In The United States
121
I.
Declarations
122
II.
Treaties
122
III.
Congressional-Executive Agreements
122
IV.
Sole-Executive Agreement
122
V.
Customary International Law
123
2.
Effects Of International Agreements
123
I.
Self-Executing Agreements
124
II.
Non-Self-Executing
125
3.
International Instruments Addressing Religious Issues To Which The United States Is A Party
125
I.
Declarations
125
II.
Relevant International Instruments That Have Been Signed and Ratified by the US
126
III.
Relevant International Instruments That the US Has Signed but Not Ratified
128
4.
References To International Law In US Cases
128
ch. 2
Transnational Law Effects on Religious Communities
130
1.
US Law With International Effects
130
I.
International Religious Freedom Act
130
II.
Foreign Corrupt Practices Act
131
2.
Foreign Laws With Effects In The US
131
I.
EU Data Privacy Protections
131
II.
Religious Asylum Law
132
ch. 3
Regional Law Effects on Religious Communities
133
1.
Organization For American States
133
Part V Religion and Politics
135
ch. 1
Religious Influence in Politics
135
1.
Constitutional Principles
135
2.
Irs Rules Regarding Political Activities Of Tax-Exempt Organizations
138
I.
No Candidate Endorsement - Bright-Line Rule
138
II.
No Substantial Political Activities
139
III.
Challenges to IRS Rules and Non-enforcement
140
3.
Role Of Religion In Political And Social Movements
143
I.
Independence
143
II.
Abolition of Slavery
144
III.
Women's Right to Vote
145
IV.
Temperance Movement
145
V.
Civil Rights
146
VI.
Anti-Abortion Movement
147
VII.
Gay Rights
148
VIII.
Public Reason and the Marginalization of Religion
149
4.
Role Of Religion In Political Campaigns
149
I.
Perceived Necessity of Some Religious Affiliation/Belief
150
II.
Civil Religion
150
ch. 2
Political Influence in Religion
152
1.
Introduction
152
2.
Constitutional Framework
152
3.
Political Pressure On Religious Groups
152
4.
Religious Organizations That Violate Fundamental Public Policy
155
5.
Participation In Government Funding Programs
156
ch. 3
Interaction between Religion and State on a Political and Legal Level
157
1.
Overview
157
2.
Legislative Prayer
157
3.
Religious Symbols On Public Property
159
4.
Civil Religion
161
5.
Religion And Politics
162
6.
Religious Freedom And International Affairs
167
Part VI Labor Law within Religious Communities
169
ch. 1
Scope of Application of Labor Law
169
1.
General Background
169
2.
Non-Discrimination In Employment Decisions
170
I.
Non-discrimination Law
170
II.
Religious Exemptions
170
3.
Unions And Labor Organizations
171
I.
Law on Collective Bargaining and Labor Organizations
171
II.
Religious Exemptions
171
4.
Social Security And Tax Laws
172
I.
Overview of Social Security and Tax Laws for Organizations
172
II.
Religious Exemptions
173
ch. 2
Religious Ministers and Labor Law
174
1.
Historical Background
174
I.
Deferential Interpretation of Labor Laws
174
2.
Ministerial Exception
174
3.
Personal Income Tax
175
I.
General Provisions
175
II.
Parsonage Exemption
175
4.
Social Security (Public Pensions)
176
ch. 3
Other Church Employees and Labor Law
178
1.
Exemptions From General Non-Discrimination Laws
178
I.
Federal Non-discrimination Laws
178
A.
Prohibition on Discrimination Based on Religion
178
B.
Scope of Entities Required to Comply
178
C.
Bona Fide Occupational Qualification
179
II.
State Non-Discrimination Laws
179
III.
Exemptions from Labor Law for Religious Communities
180
2.
Non-Discrimination In Federal Government Contracting
181
3.
Non-Discrimination And Provision Of Government-Funded Social Services
181
I.
Overview
181
II.
'Charitable Choice'
182
III.
State Restrictions on Discrimination for State-Funded Social Service Organizations
182
Part VII Religious Communities and Protections of the Individual
183
ch. 1
Protection of Privacy
183
1.
Introduction
183
2.
Common Law Tort Of Invasion Of Privacy
183
I.
Public Figures
183
3.
Protection Of Privacy Under The Us Constitution
184
I.
Constitution and State Action
184
II.
No Direct Constitutional Right to Privacy
184
III.
Searches and Seizures
185
IV.
Family Life
186
V.
Access to Contraceptives and Abortion
186
VI.
Gay Rights
186
4.
State Law Protections Of Privacy
187
5.
Federal Laws Concerning Privacy
187
I.
Data Privacy Laws
187
II.
Non-disclosure of Church Finances
189
6.
Priest-Penitent Privilege
189
7.
Church Autonomy Doctrine
191
8.
Disclosure Of Religious Affiliation
191
ch. 2
Freedom to Marry
193
1.
Introduction
193
I.
Constitutional Right to Marry
194
II.
State Law
194
III.
Civil Effect of Religious Marriages
196
IV.
No Religious Freedom Right to Practice Polygamy
197
2.
Marriage And Race
197
I.
Anti-miscegenation Statutes
197
3.
Same-Sex Marriage
199
I.
Constitutional Status of Same-Sex Marriage
199
II.
Conscientious Objection to Performing Same-Sex Marriages and Providing Wedding-Related Services
203
A.
State Officials
203
B.
Churches and Religious Officials
204
C.
Church-Affiliated Nonprofits
204
D.
For-profit Businesses
205
E.
State Religious Freedom Restoration Acts
205
ch. 3
Freedom of Expression
207
1.
Right To Profess
207
2.
Right To Propagate
207
3.
Government-Compelled Speech
209
4.
Viewpoint Discrimination
210
5.
Protecting Religious Sensitivities
210
I.
Blasphemy
210
II.
Defamation
211
III.
Hate Speech
212
6.
Free Speech At Public Universities
212
7.
Free Speech At Private Universities
213
8.
Religious Newspapers And Broadcast Companies
214
9.
Content-Neutral Regulation Of Speech
215
10.
Limited Public Fora And Equal Access
215
11.
Public Fora And Unpopular Viewpoints
218
ch. 4
Due Process Norms and Religious Groups
219
1.
Due Process Under The Fifth And Fourteenth Amendments
219
2.
Application Of Due Process To Religious Groups And Other Private Actors
219
3.
Due Process Under Statutory Law
220
ch. 5
Professional Secrecy
222
1.
Introduction
222
2.
Basic Protections And State Variances
223
3.
Assertion Of Privilege
224
4.
Child Abuse Reporting Statutes
224
ch. 6
Medical Deontology
226
1.
Abortion
226
I.
Constitutional Abortion Rights
226
II.
Conscientious Objection to Abortion
227
A.
Federal Protections for Conscientious Objection to Abortion
227
B.
State Protections for Conscientious Objection to Abortion Services
228
2.
Contraception
228
I.
Constitutional Contraception Rights
228
II.
Conscientious Objection to Provision of Contraceptives
229
A.
General Background
229
B.
Affordable Care Act's Contraceptive Mandate
229
C.
Protections for Conscientious Objection to Contraceptives to Federal Employees
230
D.
State Protections for Conscientious Objection to Contraceptives
231
3.
Assisted Reproductive Technologies
231
I.
Federal Law
231
II.
State Law
232
A.
Artificial Insemination
232
B.
Surrogacy
232
C.
In Vitro Fertilization
233
D.
Exemptions for Religious Organizations
233
4.
Stem Cell Research
234
5.
Right To Object To Medical Procedures For Self And Minors
235
6.
Assisted Suicide
236
ch. 7
Non-discrimination
237
1.
Constitutional Non-Discrimination Protections
237
I.
General Provisions
237
II.
Separation-Based Tests 237 Non-discrimination Based Tests
238
2.
Non-Discrimination In Speech And Symbolism
239
I.
General Approach
239
II.
Speech in School Contexts
239
III.
Government Speech in Public Fora
240
IV.
Private Speech in Public Fora
240
A.
Religious Displays
240
B.
Legislative Prayer
241
V.
Private Speech in Limited Public Fora
241
3.
Significant Statutory Non-Discrimination Protections
244
4.
State Constitutions And State Law Non-Discrimination Provisions
244
ch. 8
Penal Law and Religion
245
1.
General Background
245
I.
Penal Laws Criminalizing Manifestations of Religion
245
II.
Other Penal Laws Dealing with Religion
246
2.
Religious Freedom Of Incarcerated Persons
247
I.
Basic Framework: RLUIPA
247
A.
'Substantial Burden' under RLUIPA
248
B.
'Compelling interest' under RLUIPA
248
C.
'Least Restrictive Means' under RLUIPA
249
II.
Religious Diets
249
III.
Right to Worship
250
IV.
Attire and Grooming
251
V.
Chaplains
251
Part VIII Church Financing
253
ch. 1
Direct Financing of Religious Communities
253
1.
Historical Background
253
I.
Early Disestablishment Efforts
253
II.
Early Constitutional Approaches to State Aid
254
2.
No Direct Aid: Separation Of Church And State
255
3.
Direct State Aid To Religiously Affiliated Schools
256
I.
'Child-Benefit' Theory
256
II.
'Religious Use' Approach
257
III.
Current Approach: Agostini v. Felton
258
ch. 2
Indirect Financing of Religious Communities
260
1.
Indirect Financing Through Federal And State Tax Codes
260
I.
Federal Tax-exempt Status
260
A.
Requirements for Tax-exempt Status Generally
260
B.
Requirements for Status as a Tax-Exempt 'Church'
261
C.
Additional Benefits from Tax-Exempt Status
262
D.
Public Policy Restrictions on Tax-Exempt Status
263
II.
Federal Tax Deductibility of Contributions
263
III.
State Tax Laws
264
2.
Funding Of Religiously Affiliated Social Services
265
I.
Scope of Government-funded Religiously Affiliated Social Services
265
II.
Statutory Restrictions on Religious Organizations Receiving State Aid for Social Services
266
A.
Historical Restrictions
266
B.
Charitable Choice Initiatives
266
3.
Constitutional Restrictions On Indirect Financing Of Religious Communities
268
I.
Constitutionality of Tax Exemptions
268
II.
Constitutionality of Aid to Social Service Providers
270
III.
Constitutionality of Funding of Religiously Affiliated Private Schools
271
Part IX Education
273
ch. 1
Religious Education in Public and Private Schools
273
1.
Development Of Public Education
273
2.
Religious And Denominational Education In Public Schools
274
I.
Denominational Education/Release Time
274
II.
Courses about Religion
275
III.
Challenges to Secular Teachings
275
3.
Prayer, Worship, And Quasi-Religious Patriotic Observances In Public Schools
276
I.
Prayer and School-Endorsed Worship
276
II.
Quasi-Religious Patriotic Observances in Public Schools
277
III.
Non-Official Worship and Clubs in Public Schools
278
4.
Creation Of Religious School Districts
279
ch. 2
Religious Schools
280
1.
Right To Private Education
280
2.
Religious Autonomy
281
3.
Financing Of Private Schools
282
I.
Establishment Clause Limits on Financing of Private Schools
282
A.
No Direct Aid: Everson
283
B.
Heightened Limits on State aid: the Lemon Test
284
C.
'Child Benefit' Theory
285
D.
More Permissive Standard for Indirect State Aid: Agostini
287
II.
Interaction of the Establishment Clause and Free Exercise Clause in State Aid to Religious Schools
287
Part X Matrimonial and Family Law
289
ch. 1
Legal Position of Religious Marriage
289
1.
Introduction
289
2.
State Law
289
3.
Same Sex Marriage
290
4.
Status Of Religious Marriage And Eligibility Of Clergy
290
5.
Mail-In Clergy/Internet Ministers
291
6.
Illegal Marriages
291
7.
Prenuptial Agreements And Religious Arbitration
291
ch. 2
Legal Position of Religious Family Law
293
1.
Introduction
293
2.
Prenuptial Agreements With Religious Norms
293
3.
Religion-Based Alternative Dispute Resolution
294
4.
Covenant Marriage
295
5.
Divorce
295
Part XI Religion and Culture
297
ch. 1
Religion and Art
297
1.
Introduction
297
2.
Public Displays Of Religious Art And Religious Symbols
298
3.
Religious Buildings And Architecture
301
4.
National Cathedral
302
5.
Historic Landmark Designation
303
6.
Art That Offends Religion
304
I.
Blasphemous Art and Hate Speech
304
II.
Public Funding of Blasphemous Art
306
ch. 2
Religion and Media
307
1.
Introduction
307
2.
Print Media
308
3.
Taxation On Sale Of Religious Publications
309
4.
Broadcast Media
310
5.
Use Of Public Media
312
6.
Portrayal Of Religion In The Media
312
ch. 3
Religion and Civil Society
314
1.
Historical Background
314
I.
Founding Era
314
II.
Contemporary Understandings of the Founding Era
315
III.
Process of State Disestablishment
316
IV.
Religious Involvement in Important Social Movements
317
2.
Religious Involvement In Nonprofit And Charitable Activities
318
I.
Charitable Activities of Religious Groups
318
II.
Culture of Volunteerism
319
III.
Monetary Contributions to Charity and Religion
319
3.
Civil Religion
320
I.
Distinctive American Conception of Civil Religion
320
II.
Civil Religion Practices
320
III.
Controversies Surrounding Civil Religion
321
IV.
Naked Public Square
321
4.
Government Relations With Religion
322
I.
Minimal and Decentralized Regulation of Religion
322
II.
White House Office
322
III.
State Department and International Religious Freedom
323
ch. 4
Religion and Public Debate
324
1.
Legal Framework
324
2.
Historical Background
325
3.
Contemporary Debates About Religion And Politics
326
4.
Public Reason
327
5.
Ecumenical Politics
329
Table of Statutes
333
Table of Cases
337
Selected Bibliography
345
Index
365