Freedom of Religion/Philosophical Origins/Theories - Revision history

Jkochan1 at 12:13, 27 February 2023

2023-02-27T12:13:20Z

← Older revision		Revision as of 12:13, 27 February 2023
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	\|questionHeading=What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?		\|questionHeading=What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?
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	\|contents=		\|contents=Originalists disagree on the proper interpretation of the Free-Exercise Clause. In Employment Division v. Smith (1990), Justice Scalia, who was one of the legal community’s foremost originalists, issued the opinion of the court, arguing that the clause does not provide for religious exceptions to generally applicable law. In the case, a Native American was fired from his job and denied unemployment benefits for using Peyote, a substance sometimes smoked during religious ceremonies. The court had previously ruled in Sherbert v. Verner (1963) that the First Amendment does provide for that type of exception unless there is a compelling reason to enforce the law anyway (Munoz 1083). As Munoz argues, the Continental Congress’s deliberations may settle this dispute. The Congress considered and rejected a constitutional right not to join state militias for religious reasons, indicating opposition to religious exceptions to general laws (1085). Scalia in Employment Division v. Smith: “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” Originalists tend to take a narrow view of the establishment clause. According to Middle Tennessee State University, Scalia believed the clause “only bars official activities that may promote the activities of a particular sect.” He believed the government may, therefore, promote religion over nonreligion, and that government acknowledgment and accommodation is acceptable (Curry and Hudson 2017). In Lee v. Weisman (1992), a prayer-in-schools case, Scalia issued a dissenting opinion in which he argued that whether a practice was acceptable early in the nation’s history should help inform whether or not it violates the Establishment Clause. In this case, he viewed prayer in schools as acceptable in part because of the long tradition of prayer in government-sponsored gatherings. Scalia in Lee v. Weisman: “In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court—with nary a mention that it is doing so—lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” In a case from this June, Espinoza v. Montana Dept. of Revenue, Justice Thomas went even further, arguing that, “As I have explained in previous cases, at the founding, the Clause served only to ‘protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government”’ (p. 2).
	Originalists disagree on the proper interpretation of the Free-Exercise Clause. In Employment Division v. Smith (~~[[Probable year::~~ 1990]]) , ~~Justice~~ Scalia, who was one of the legal community’s foremost originalists, issued the opinion of the court, arguing that the clause does not provide for religious exceptions to generally applicable law. In the case, a Native American was fired from his job and denied unemployment benefits for using Peyote, a substance sometimes smoked during religious ceremonies. The court had previously ruled in ~~Sherbert~~ v. ~~Verner~~ (~~[[Probable year::~~ 1963]]) that the First Amendment does provide for that type of exception unless there is a compelling reason to enforce the law anyway (Munoz ~~[[Probable year::~~ 1083]]) . As Munoz argues, the Continental Congress’s deliberations may settle this dispute. The Congress considered and rejected a constitutional right not to join state militias for religious reasons, indicating opposition to religious exceptions to general laws (~~[[Probable year::~~ 1085]]) .
	Scalia in ~~Employment~~ Division v. ~~Smith~~: ~~“We~~ have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.”
	Originalists tend to take a narrow view of the establishment clause. According to Middle Tennessee State University, Scalia believed the clause “only bars official activities that may promote the activities of a particular sect.” He believed the government may, therefore, promote religion over nonreligion, and that government acknowledgment and accommodation is acceptable (Curry and Hudson ~~[[Probable year::~~ 2017]]) . In ~~Lee~~ v. ~~Weisman~~ (~~[[Probable year::~~ 1992]]) , a prayer-in-schools case, Scalia issued a dissenting opinion in which he argued that whether a practice was acceptable early in the nation’s history should help inform whether or not it violates the Establishment Clause. In
	this case, he viewed prayer in schools as acceptable in part because of the long tradition of prayer in government-sponsored gatherings.
	Scalia in ~~Lee~~ v. ~~Weisman~~: ~~“In~~ holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court—with nary a mention that it is doing so—lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.”
	In a case from this June, ~~Espinoza~~ v. Montana Dept. of Revenue, Justice Thomas went even further, arguing that, “As I have explained in previous cases, at the founding, the Clause served only to ‘protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government”’ (p. 2).

	~~Munoz~~: https://poseidon01.ssrn.com/delivery.php?ID=9420940680730001010910981140831230860340 08059068089043102127107104085000073089113076103052038060105029109003069066[[Probable year:: 1211]] 201080260520780270280480911210290090881160250670750410221101001200720910030790 82021094097027125023004126080023120030064020093085097&EXT=pdf		REFERENCES:

	Employment Division v. ~~Smith~~: https://mtsu.edu/first-amendment/article/364/employment-division-department-of-human-~~resour ces~~-of-oregon-v-smith		Curry and Hudson:https://www.mtsu.edu/first-amendment/article/1356/antonin-scalia
			Employment Division v. Smith: https://mtsu.edu/first-amendment/article/364/employment-division-department-of-human-resources-of-oregon-v-smith

	~~Curry and Hudson:https://www.mtsu.edu/first-amendment/article/[[Probable year:: 1356]]/ antonin-scalia~~		Espinoza v. Montana: https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf

	~~Lee V. Weisman: https://supreme.justia.com/cases/federal/us/505/577/~~

	Espinoza v. Montana:~~ https~~://www.supremecourt.gov/opinions/19pdf/18-~~[[Probable year:: 1195]]_ g314~~.pdf

			Lee V. Weisman: https://supreme.justia.com/cases/federal/us/505/577/

			Muñoz, Vincent Phillip, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress (2008). Harvard Journal of Law and Public Policy, Vol. 31, No. 3, pp. 1083-1120, 2008, Available at SSRN: https://ssrn.com/abstract=1150780
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Import-sysop: transformed

2022-12-28T22:08:47Z

transformed

Import-sysop: transformed

2022-11-25T19:51:54Z

transformed

New page

{{Right section
|right=Freedom of Religion
|section=Philosophical Origins
|question=Theories
|questionHeading=What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?
|pageLevel=Question
|contents=
Originalists disagree on the proper interpretation of the Free-Exercise Clause. In Employment Division v. Smith ([[Probable year::1990]]) , Justice Scalia, who was one of the legal community’s foremost originalists, issued the opinion of the court, arguing that the clause does not provide for religious exceptions to generally applicable law. In the case, a Native American was fired from his job and denied unemployment benefits for using Peyote, a substance sometimes smoked during religious ceremonies. The court had previously ruled in Sherbert v. Verner ([[Probable year::1963]]) that the First Amendment does provide for that type of exception unless there is a compelling reason to enforce the law anyway (Munoz [[Probable year::1083]]) . As Munoz argues, the Continental Congress’s deliberations may settle this dispute. The Congress considered and rejected a constitutional right not to join state militias for religious reasons, indicating opposition to religious exceptions to general laws ([[Probable year::1085]]) .
Scalia in Employment Division v. Smith: “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.”
Originalists tend to take a narrow view of the establishment clause. According to Middle Tennessee State University, Scalia believed the clause “only bars official activities that may promote the activities of a particular sect.” He believed the government may, therefore, promote religion over nonreligion, and that government acknowledgment and accommodation is acceptable (Curry and Hudson [[Probable year::2017]]) . In Lee v. Weisman ([[Probable year::1992]]) , a prayer-in-schools case, Scalia issued a dissenting opinion in which he argued that whether a practice was acceptable early in the nation’s history should help inform whether or not it violates the Establishment Clause. In
this case, he viewed prayer in schools as acceptable in part because of the long tradition of prayer in government-sponsored gatherings.
Scalia in Lee v. Weisman: “In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court—with nary a mention that it is doing so—lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.”
In a case from this June, Espinoza v. Montana Dept. of Revenue, Justice Thomas went even further, arguing that, “As I have explained in previous cases, at the founding, the Clause served only to ‘protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government”’ (p. 2).

Munoz: https://poseidon01.ssrn.com/delivery.php?ID=9420940680730001010910981140831230860340 08059068089043102127107104085000073089113076103052038060105029109003069066[[Probable year::1211]] 201080260520780270280480911210290090881160250670750410221101001200720910030790 82021094097027125023004126080023120030064020093085097&EXT=pdf

Employment Division v. Smith: https://mtsu.edu/first-amendment/article/364/employment-division-department-of-human-resour ces-of-oregon-v-smith

Curry and Hudson:https://www.mtsu.edu/first-amendment/article/[[Probable year::1356]]/ antonin-scalia

Lee V. Weisman: https://supreme.justia.com/cases/federal/us/505/577/

Espinoza v. Montana: https://www.supremecourt.gov/opinions/19pdf/18-[[Probable year::1195]]_ g314.pdf

}}

← Older revision		Revision as of 22:08, 28 December 2022
Line 6:		Line 6:
	\|pageLevel=Question		\|pageLevel=Question
	\|contents=		\|contents=
	Originalists disagree on the proper interpretation of the Free-Exercise Clause. In Employment Division v. Smith ([[Probable year::1990]]) , Justice Scalia, who was one of the legal community’s foremost originalists, issued the opinion of the court, arguing that the clause does not provide for religious exceptions to generally applicable law. In the case, a Native American was fired from his job and denied unemployment benefits for using Peyote, a substance sometimes smoked during religious ceremonies. The court had previously ruled in Sherbert v. Verner ([[Probable year::1963]]) that the First Amendment does provide for that type of exception unless there is a compelling reason to enforce the law anyway (Munoz [[Probable year::1083]]) . As Munoz argues, the Continental Congress’s deliberations may settle this dispute. The Congress considered and rejected a constitutional right not to join state militias for religious reasons, indicating opposition to religious exceptions to general laws ([[Probable year::1085]]) .		Originalists disagree on the proper interpretation of the Free-Exercise Clause. In Employment Division v. Smith ([[Probable year:: 1990]]) , Justice Scalia, who was one of the legal community’s foremost originalists, issued the opinion of the court, arguing that the clause does not provide for religious exceptions to generally applicable law. In the case, a Native American was fired from his job and denied unemployment benefits for using Peyote, a substance sometimes smoked during religious ceremonies. The court had previously ruled in Sherbert v. Verner ([[Probable year:: 1963]]) that the First Amendment does provide for that type of exception unless there is a compelling reason to enforce the law anyway (Munoz [[Probable year:: 1083]]) . As Munoz argues, the Continental Congress’s deliberations may settle this dispute. The Congress considered and rejected a constitutional right not to join state militias for religious reasons, indicating opposition to religious exceptions to general laws ([[Probable year:: 1085]]) .
	Scalia in Employment Division v. Smith: “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.”		Scalia in Employment Division v. Smith: “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.”
	Originalists tend to take a narrow view of the establishment clause. According to Middle Tennessee State University, Scalia believed the clause “only bars official activities that may promote the activities of a particular sect.” He believed the government may, therefore, promote religion over nonreligion, and that government acknowledgment and accommodation is acceptable (Curry and Hudson [[Probable year::2017]]) . In Lee v. Weisman ([[Probable year::1992]]) , a prayer-in-schools case, Scalia issued a dissenting opinion in which he argued that whether a practice was acceptable early in the nation’s history should help inform whether or not it violates the Establishment Clause. In		Originalists tend to take a narrow view of the establishment clause. According to Middle Tennessee State University, Scalia believed the clause “only bars official activities that may promote the activities of a particular sect.” He believed the government may, therefore, promote religion over nonreligion, and that government acknowledgment and accommodation is acceptable (Curry and Hudson [[Probable year:: 2017]]) . In Lee v. Weisman ([[Probable year:: 1992]]) , a prayer-in-schools case, Scalia issued a dissenting opinion in which he argued that whether a practice was acceptable early in the nation’s history should help inform whether or not it violates the Establishment Clause. In
	this case, he viewed prayer in schools as acceptable in part because of the long tradition of prayer in government-sponsored gatherings.		this case, he viewed prayer in schools as acceptable in part because of the long tradition of prayer in government-sponsored gatherings.
	Scalia in Lee v. Weisman: “In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court—with nary a mention that it is doing so—lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.”		Scalia in Lee v. Weisman: “In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court—with nary a mention that it is doing so—lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.”
	In a case from this June, Espinoza v. Montana Dept. of Revenue, Justice Thomas went even further, arguing that, “As I have explained in previous cases, at the founding, the Clause served only to ‘protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government”’ (p. 2).		In a case from this June, Espinoza v. Montana Dept. of Revenue, Justice Thomas went even further, arguing that, “As I have explained in previous cases, at the founding, the Clause served only to ‘protec[t] States, and by extension their citizens, from the imposition of an established religion by the Federal Government”’ (p. 2).

	Munoz: https://poseidon01.ssrn.com/delivery.php?ID=9420940680730001010910981140831230860340 08059068089043102127107104085000073089113076103052038060105029109003069066[[Probable year::1211]] 201080260520780270280480911210290090881160250670750410221101001200720910030790 82021094097027125023004126080023120030064020093085097&EXT=pdf		Munoz: https://poseidon01.ssrn.com/delivery.php?ID=9420940680730001010910981140831230860340 08059068089043102127107104085000073089113076103052038060105029109003069066[[Probable year:: 1211]] 201080260520780270280480911210290090881160250670750410221101001200720910030790 82021094097027125023004126080023120030064020093085097&EXT=pdf

	Employment Division v. Smith: https://mtsu.edu/first-amendment/article/364/employment-division-department-of-human-resour ces-of-oregon-v-smith		Employment Division v. Smith: https://mtsu.edu/first-amendment/article/364/employment-division-department-of-human-resour ces-of-oregon-v-smith

	Curry and Hudson:https://www.mtsu.edu/first-amendment/article/[[Probable year::1356]]/ antonin-scalia		Curry and Hudson:https://www.mtsu.edu/first-amendment/article/[[Probable year:: 1356]]/ antonin-scalia

	Lee V. Weisman: https://supreme.justia.com/cases/federal/us/505/577/		Lee V. Weisman: https://supreme.justia.com/cases/federal/us/505/577/

	Espinoza v. Montana: https://www.supremecourt.gov/opinions/19pdf/18-[[Probable year::1195]]_ g314.pdf		Espinoza v. Montana: https://www.supremecourt.gov/opinions/19pdf/18-[[Probable year:: 1195]]_ g314.pdf


	}}		}}