Tag Archives: Free Exercise

Colombo on the Naked Private Square

Ronald J. Colombo  (Hofstra U. School of Law) has posted The Naked Private Square. The abstract follows.

In the latter half of the twentieth century, America witnessed the construction of a “wall of separation” between religion and the public square. What had once been commonplace (such as prayer in public schools, and religious symbols on public property) had suddenly become verboten. This phenomenon is well known and has been well studied.

Less well known (and less well studied) has been the parallel phenomenon of religion’s expulsion from the private square. Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable because religious freedom does not truly and fully exist if religion expression and practice is restricted to the private quarters of one’s home or temple.

Fortunately, a corrective to this situation exists: recognition of the right to free exercise of religion on the part of business corporations. Such a right has been long in the making, and the jurisprudential trajectory of the courts (especially the U.S. Supreme Court), combined with the increased assertion of this right against certain elements of the current regulatory onslaught, suggests that its recognition is imminent.

Bridge on State Enactment of Religious Freedom Restoration Act Laws

Last week, Oxford Journal of Church and State posted for advanced access Religious Freedom or Libertarianism: What Explains State Enactments of Religious Freedom Restoration Act Laws? by Dave Bridge (Baylor University).  An extract of the piece follows.

In 2002, officer Rex Shrum submitted his letter of resignation to the Coweta, Oklahoma, police department. Also a Church of Christ minister, Shrum quit the force after twelve years when his superiors would no longer accommodate his need to have Sunday mornings off. Invoking the Oklahoma Religious Freedom Act, Shrum sued, claiming that the city officials had denied him his right to free exercise. The jury sided with the minister, awarding Shrum a total of $235, 000 for religious freedom claims. Even though the Supreme Court had already struck down the federal Religious Freedom Restoration Act (RFRA) in City of Boerne, Texas v. Flores, Shrum had brought suit under Oklahoma’s state-level Religious Freedom Act. This essay looks at state-level RFRAs and assesses their determinants. What factors are associated with states that pass RFRAs? More importantly, what do these factors tell us about (1) broader trends in American politics and (2) the RFRAs themselves?

State RFRAs are significant because they occupy a unique place in American public policy and ideology. At the policy level, they provide concrete laws for the execution of the loftier ideal of free exercise. RFRAs give citizens a clear foundation for making free exercise violation claims against the state. Even though the US Constitution and state constitutions may have language promoting free exercise, state RFRAs provide a strong indicator that their respective states will take steps to ensure religious freedom. Practically, they provide easier access to the courts for free exercise claimants and lay out a stricter standard for state action. The impact of Oklahoma’s law, for example, can be seen above, as Shrum used the Oklahoma RFRA to pursue his case.

Gill, “An Argument for Same-Sex Marriage”

Last Month, Georgetown University Press published An Argument for Same-Sex Marriage: Religious Freedom, Sexual Freedom, and Public Expressions of Civic Equality by Emily R. Gill (Bradley University). The publisher’s description follows.

The relationship between religious belief and sexuality as personal attributes exhibits some provocative comparisons. Despite the nonestablishment of religion in the United States and the constitutional guarantee of free exercise, Christianity functions as the religious and moral standard in America. Ethical views that do not fit within this consensus often go unrecognized as moral values. Similarly, in the realm of sexual orientation, heterosexuality is seen as the yardstick by which sexual practices are measured. The notion that “alternative” sexual practices like homosexuality could possess ethical significance is often overlooked or ignored.

In her new book, An Argument for Same-Sex Marriage, political scientist Emily Gill draws an extended comparison between religious belief and sexuality, both central components of one’s personal identity. Using the religion clause of the First Amendment as a foundation, Gill contends that, just as US law and policy ensure that citizens may express religious beliefs as they see fit, it should also ensure that citizens may marry as they see fit. Civil marriage, according to Gill, is a public institution, and the exclusion of some couples from a state institution is a public expression of civic inequality. Continue reading