Articles Flashcards
Kerr, “Reading a Judicial Opinion”
There is no one correct answer.
Trial Court: “street smarts” Focus on facts, decided by jury or single judge, ruling leads to final, appealable result
Appellate Court: “book smarts” Focus on law, Opinion by majority of judges, Dissent- rejects majority, Concur- Agrees with majority, but offers alternative reason
Elements of a Judicial Opinion: The caption- Lynch v. Donnelly, The case citation- 465 U.S. 668 (1984), Author of the Opinion- Burger, Facts of the Case, Law of the Case, The Disposition, Concurring and/or Dissenting Opinions
Asad, “Trying to Understand French Secularism
He focuses on the meaning of secular and argues that no nation is fully secular. In some way, a nation is grounded by a hegemonic belief.
Reading signs: The Commission takes certain signs to have a “religious” meaning by virtue of their synedochic relation to the systems of collective representation. Ex: kippa for Judaism, Cross for Christianity.
Dealing with Exceptions: There is an unequal balance. Ex: Christian and Jewish schools where it is possible to display crosses and kippas.
Passionate Subjects: French as an identity is commonly opposed, as it was in Algeria, to the inferior categories of Arab or Muslim. This public attitude is now reinforced by a new concern about international terrorism
Sullivan, “Lynch v. Donnelly”
Thesis: The court announced that the city of Pawtucket had not unconstitutionally established religion when it included a life-sized creche as a central feature of its Christmas display. 5-4 Decision
For Campbell, it is “rites” that make the context religious. The simple display of objects associated with religion does not. His argument is that if the public celebration of Christmas is constitutional, how can the creche logically be excluded from the public celebration, as long as thee was no “rites”? (More info on court case)
McConnell “Old Liberalism, New Liberalism”
Old liberalism:
Original sin and rejection of Utopianism- All humans are prone to abuse of power.
Limited Government and the separation of church and state- talks about two kingdoms theory
Conscience and Rights- Belief that faith, valid and acceptable to God, must be uncoerced.
Equality and the Priesthood of All Believers- all of us are subjects to God.
New Liberalism: Hostile to or suspicious of religion
Political to Comprehensive Liberalism- addresses nonpolitical life as well, including conceptions of what is of value in human life and ideals of personal character
The Decline of Limited Government- liberalism ceased to be understood as standing for limited government
Neutrality and Secularism
Madison M and R, Federalist No. 10
M and R:
People are sinners and look out for their best interest. idolatry leads to tyranny because we look at one person to decide. Only way to avoid this is separation of powers. One faction should not be stronger than another. Two kingdoms theory. All factions should have a public voice. You can’t create “ideal citizens” if you’re engaged in “statecraft”
Federalist No. 10:
a large republic will help control factions because when more representatives are elected, there will be a greater number of opinions. Therefore, it is far less likely that there will be one majority oppressing the rest of the people. Only way to avoid this is separation of powers.
Rosseau, The Social Contract
Two kingdoms theory divides authority and causes confusion. Positive and negative dogmas. “Good religion” can minimize the interference of priests.
Gordon, The Mormon Question
The book explores the practice of polygamy within the Mormon community, including its religious significance and the societal backlash it generated. Gordon discusses how the U.S. government responded to polygamy through legislation, such as the Morrill Anti-Bigamy Act and the Edmunds Act (made polygamy a felony), which aimed to curtail the practice and assert federal authority. The book delves into how polygamy shaped Mormon identity and community dynamics, fostering a sense of unity among adherents while alienating them from mainstream society. Many feared and distrusted the mormons. After they discontinued polygamy, they integrated into society although some branched off and continued it.
Kaveny, “Eye of the Storm”, “Smith and RFRA”
Eye of Storm:
Bishops objected to the inclusion of contraceptive services on the list of preventive services covered without co-payment requirements by ACA. They also objected the exemptions made to colleges and universities. Smith changed the Sherbert test to rational basis which is more lenient. Catholics did not criticize this hoping that it’ll overturn roe v. wade. The rhetorical dance.
Smith and RFRA:
RFRA established as backlash towards Smith to restore strict scrutiny. It only applied in the federal context not the state.
Long, “Smith: the Battle for Religious Freedom”
Basically the case
