Religious symbols and religious garb in the courtroom: Personal values and public judgments

Fordham Law Review

Volumn 66, Issue 4, 1998, Pages 1505-1540

  Levine, Samuel J ^a,b,c,d  

^a ST JOHN'S UNIVERSITY   (United States)

^b YESHIVA UNIVERSITY   (United States)

^c FORDHAM UNIVERSITY   (United States)

^d Och Spine at New York Presbyterian Hospitals   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0032378519     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (295)

1. Lynch v. Donnelly, 465 U.S. 668 (1984).
2. County of Allegheny v. ACLU, 492 U.S. 573 (1989).
3. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995). For a discussion of political and social implications of public displays of religious symbols, see Kenneth L. Karst, The First Amendment, the Politics of Religion and the Symbols of Government, 27 Harv. C.R.-C.L. L. Rev. 503 (1992).
4. See Goldman v. Weinberger, 475 U.S. 503 (1986).
5. 374 U.S. 398 (1963).
6. 406 U.S. 205 (1972).
7. 494 U.S. 872 (1990).
8. 117 S. Ct. 2157 (1997). Boerne found unconstitutional the Religious Freedom Restoration Act ("RFRA"). There has developed a vast literature of scholarly discussions of Smith, RFRA, Boerne, and their effects on Free Exercise Clause adjudication. See, e.g., Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539 (1995) (arguing that RFRA is unconstitutional because it violates the principles of Federalism and separation of powers); Robert F. Drinan, Reflections on the Demise of the Religious Freedom Restoration Act, 86 Geo. L.J. 101 (1997) (warning that the decision to strike down RFRA may be just the beginning of a struggle between the Supreme Court, Congress, and the American people); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994) (arguing that RFRA is unconstitutional because it violates principles of religious freedom, exceeds legitimate federal authority, and impermissibly binds the Judiciary); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 333-59 (reviewing Smith and the subsequent passage and constitutionality of RFRA); Eugene Gressman & Angela C. Carmella, RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65 (1996) (arguing that RFRA is unconstitutional, a bad precedent for future Congresses that aim to undo Supreme Court decisions, and an unfortunate response to Smith); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994) (asserting that RFRA is unconstitutional, and arguing that the solution to the problems raised by Smith may be found through a more thoughtful and vigorous Supreme Court); Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209 (1994) (analyzing the legislative history of RFRA); Michael M. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997) (arguing that RFRA is a valid exercise of congressional power under Section 5 of the Fourteenth Amendment); William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 Duke L.J. 291 (1996) (arguing that RFRA oversteps the bounds of congressional power under Section 5 of the Fourteenth Amendment); Symposium: The Religious Freedom Restoration Act, 56 Mont. L. Rev. 5 (1995) (a collection of articles on RFRA).
9. 117 S. Ct. 2157 (1997). Boerne found unconstitutional the Religious Freedom Restoration Act ("RFRA"). There has developed a vast literature of scholarly discussions of Smith, RFRA, Boerne, and their effects on Free Exercise Clause adjudication. See, e.g., Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539 (1995) (arguing that RFRA is unconstitutional because it violates the principles of Federalism and separation of powers); Robert F. Drinan, Reflections on the Demise of the Religious Freedom Restoration Act, 86 Geo. L.J. 101 (1997) (warning that the decision to strike down RFRA may be just the beginning of a struggle between the Supreme Court, Congress, and the American people); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994) (arguing that RFRA is unconstitutional because it violates principles of religious freedom, exceeds legitimate federal authority, and impermissibly binds the Judiciary); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 333-59 (reviewing Smith and the subsequent passage and constitutionality of RFRA); Eugene Gressman & Angela C. Carmella, RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65 (1996) (arguing that RFRA is unconstitutional, a bad precedent for future Congresses that aim to undo Supreme Court decisions, and an unfortunate response to Smith); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994) (asserting that RFRA is unconstitutional, and arguing that the solution to the problems raised by Smith may be found through a more thoughtful and vigorous Supreme Court); Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209 (1994) (analyzing the legislative history of RFRA); Michael M. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997) (arguing that RFRA is a valid exercise of congressional power under Section 5 of the Fourteenth Amendment); William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 Duke L.J. 291 (1996) (arguing that RFRA oversteps the bounds of congressional power under Section 5 of the Fourteenth Amendment); Symposium: The Religious Freedom Restoration Act, 56 Mont. L. Rev. 5 (1995) (a collection of articles on RFRA).
10. 117 S. Ct. 2157 (1997). Boerne found unconstitutional the Religious Freedom Restoration Act ("RFRA"). There has developed a vast literature of scholarly discussions of Smith, RFRA, Boerne, and their effects on Free Exercise Clause adjudication. See, e.g., Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539 (1995) (arguing that RFRA is unconstitutional because it violates the principles of Federalism and separation of powers); Robert F. Drinan, Reflections on the Demise of the Religious Freedom Restoration Act, 86 Geo. L.J. 101 (1997) (warning that the decision to strike down RFRA may be just the beginning of a struggle between the Supreme Court, Congress, and the American people); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994) (arguing that RFRA is unconstitutional because it violates principles of religious freedom, exceeds legitimate federal authority, and impermissibly binds the Judiciary); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 333-59 (reviewing Smith and the subsequent passage and constitutionality of RFRA); Eugene Gressman & Angela C. Carmella, RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65 (1996) (arguing that RFRA is unconstitutional, a bad precedent for future Congresses that aim to undo Supreme Court decisions, and an unfortunate response to Smith); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994) (asserting that RFRA is unconstitutional, and arguing that the solution to the problems raised by Smith may be found through a more thoughtful and vigorous Supreme Court); Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209 (1994) (analyzing the legislative history of RFRA); Michael M. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997) (arguing that RFRA is a valid exercise of congressional power under Section 5 of the Fourteenth Amendment); William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 Duke L.J. 291 (1996) (arguing that RFRA oversteps the bounds of congressional power under Section 5 of the Fourteenth Amendment); Symposium: The Religious Freedom Restoration Act, 56 Mont. L. Rev. 5 (1995) (a collection of articles on RFRA).
11. 117 S. Ct. 2157 (1997). Boerne found unconstitutional the Religious Freedom Restoration Act ("RFRA"). There has developed a vast literature of scholarly discussions of Smith, RFRA, Boerne, and their effects on Free Exercise Clause adjudication. See, e.g., Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539 (1995) (arguing that RFRA is unconstitutional because it violates the principles of Federalism and separation of powers); Robert F. Drinan, Reflections on the Demise of the Religious Freedom Restoration Act, 86 Geo. L.J. 101 (1997) (warning that the decision to strike down RFRA may be just the beginning of a struggle between the Supreme Court, Congress, and the American people); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994) (arguing that RFRA is unconstitutional because it violates principles of religious freedom, exceeds legitimate federal authority, and impermissibly binds the Judiciary); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 333-59 (reviewing Smith and the subsequent passage and constitutionality of RFRA); Eugene Gressman & Angela C. Carmella, RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65 (1996) (arguing that RFRA is unconstitutional, a bad precedent for future Congresses that aim to undo Supreme Court decisions, and an unfortunate response to Smith); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994) (asserting that RFRA is unconstitutional, and arguing that the solution to the problems raised by Smith may be found through a more thoughtful and vigorous Supreme Court); Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209 (1994) (analyzing the legislative history of RFRA); Michael M. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997) (arguing that RFRA is a valid exercise of congressional power under Section 5 of the Fourteenth Amendment); William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 Duke L.J. 291 (1996) (arguing that RFRA oversteps the bounds of congressional power under Section 5 of the Fourteenth Amendment); Symposium: The Religious Freedom Restoration Act, 56 Mont. L. Rev. 5 (1995) (a collection of articles on RFRA).
12. 117 S. Ct. 2157 (1997). Boerne found unconstitutional the Religious Freedom Restoration Act ("RFRA"). There has developed a vast literature of scholarly discussions of Smith, RFRA, Boerne, and their effects on Free Exercise Clause adjudication. See, e.g., Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539 (1995) (arguing that RFRA is unconstitutional because it violates the principles of Federalism and separation of powers); Robert F. Drinan, Reflections on the Demise of the Religious Freedom Restoration Act, 86 Geo. L.J. 101 (1997) (warning that the decision to strike down RFRA may be just the beginning of a struggle between the Supreme Court, Congress, and the American people); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994) (arguing that RFRA is unconstitutional because it violates principles of religious freedom, exceeds legitimate federal authority, and impermissibly binds the Judiciary); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 333-59 (reviewing Smith and the subsequent passage and constitutionality of RFRA); Eugene Gressman & Angela C. Carmella, RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65 (1996) (arguing that RFRA is unconstitutional, a bad precedent for future Congresses that aim to undo Supreme Court decisions, and an unfortunate response to Smith); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994) (asserting that RFRA is unconstitutional, and arguing that the solution to the problems raised by Smith may be found through a more thoughtful and vigorous Supreme Court); Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209 (1994) (analyzing the legislative history of RFRA); Michael M. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997) (arguing that RFRA is a valid exercise of congressional power under Section 5 of the Fourteenth Amendment); William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 Duke L.J. 291 (1996) (arguing that RFRA oversteps the bounds of congressional power under Section 5 of the Fourteenth Amendment); Symposium: The Religious Freedom Restoration Act, 56 Mont. L. Rev. 5 (1995) (a collection of articles on RFRA).
13. 117 S. Ct. 2157 (1997). Boerne found unconstitutional the Religious Freedom Restoration Act ("RFRA"). There has developed a vast literature of scholarly discussions of Smith, RFRA, Boerne, and their effects on Free Exercise Clause adjudication. See, e.g., Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539 (1995) (arguing that RFRA is unconstitutional because it violates the principles of Federalism and separation of powers); Robert F. Drinan, Reflections on the Demise of the Religious Freedom Restoration Act, 86 Geo. L.J. 101 (1997) (warning that the decision to strike down RFRA may be just the beginning of a struggle between the Supreme Court, Congress, and the American people); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994) (arguing that RFRA is unconstitutional because it violates principles of religious freedom, exceeds legitimate federal authority, and impermissibly binds the Judiciary); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 333-59 (reviewing Smith and the subsequent passage and constitutionality of RFRA); Eugene Gressman & Angela C. Carmella, RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65 (1996) (arguing that RFRA is unconstitutional, a bad precedent for future Congresses that aim to undo Supreme Court decisions, and an unfortunate response to Smith); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994) (asserting that RFRA is unconstitutional, and arguing that the solution to the problems raised by Smith may be found through a more thoughtful and vigorous Supreme Court); Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209 (1994) (analyzing the legislative history of RFRA); Michael M. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997) (arguing that RFRA is a valid exercise of congressional power under Section 5 of the Fourteenth Amendment); William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 Duke L.J. 291 (1996) (arguing that RFRA oversteps the bounds of congressional power under Section 5 of the Fourteenth Amendment); Symposium: The Religious Freedom Restoration Act, 56 Mont. L. Rev. 5 (1995) (a collection of articles on RFRA).
14. 117 S. Ct. 2157 (1997). Boerne found unconstitutional the Religious Freedom Restoration Act ("RFRA"). There has developed a vast literature of scholarly discussions of Smith, RFRA, Boerne, and their effects on Free Exercise Clause adjudication. See, e.g., Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539 (1995) (arguing that RFRA is unconstitutional because it violates the principles of Federalism and separation of powers); Robert F. Drinan, Reflections on the Demise of the Religious Freedom Restoration Act, 86 Geo. L.J. 101 (1997) (warning that the decision to strike down RFRA may be just the beginning of a struggle between the Supreme Court, Congress, and the American people); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994) (arguing that RFRA is unconstitutional because it violates principles of religious freedom, exceeds legitimate federal authority, and impermissibly binds the Judiciary); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 333-59 (reviewing Smith and the subsequent passage and constitutionality of RFRA); Eugene Gressman & Angela C. Carmella, RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65 (1996) (arguing that RFRA is unconstitutional, a bad precedent for future Congresses that aim to undo Supreme Court decisions, and an unfortunate response to Smith); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994) (asserting that RFRA is unconstitutional, and arguing that the solution to the problems raised by Smith may be found through a more thoughtful and vigorous Supreme Court); Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209 (1994) (analyzing the legislative history of RFRA); Michael M. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997) (arguing that RFRA is a valid exercise of congressional power under Section 5 of the Fourteenth Amendment); William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 Duke L.J. 291 (1996) (arguing that RFRA oversteps the bounds of congressional power under Section 5 of the Fourteenth Amendment); Symposium: The Religious Freedom Restoration Act, 56 Mont. L. Rev. 5 (1995) (a collection of articles on RFRA).
15. 117 S. Ct. 2157 (1997). Boerne found unconstitutional the Religious Freedom Restoration Act ("RFRA"). There has developed a vast literature of scholarly discussions of Smith, RFRA, Boerne, and their effects on Free Exercise Clause adjudication. See, e.g., Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539 (1995) (arguing that RFRA is unconstitutional because it violates the principles of Federalism and separation of powers); Robert F. Drinan, Reflections on the Demise of the Religious Freedom Restoration Act, 86 Geo. L.J. 101 (1997) (warning that the decision to strike down RFRA may be just the beginning of a struggle between the Supreme Court, Congress, and the American people); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994) (arguing that RFRA is unconstitutional because it violates principles of religious freedom, exceeds legitimate federal authority, and impermissibly binds the Judiciary); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 333-59 (reviewing Smith and the subsequent passage and constitutionality of RFRA); Eugene Gressman & Angela C. Carmella, RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65 (1996) (arguing that RFRA is unconstitutional, a bad precedent for future Congresses that aim to undo Supreme Court decisions, and an unfortunate response to Smith); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994) (asserting that RFRA is unconstitutional, and arguing that the solution to the problems raised by Smith may be found through a more thoughtful and vigorous Supreme Court); Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209 (1994) (analyzing the legislative history of RFRA); Michael M. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997) (arguing that RFRA is a valid exercise of congressional power under Section 5 of the Fourteenth Amendment); William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 Duke L.J. 291 (1996) (arguing that RFRA oversteps the bounds of congressional power under Section 5 of the Fourteenth Amendment); Symposium: The Religious Freedom Restoration Act, 56 Mont. L. Rev. 5 (1995) (a collection of articles on RFRA).
16. 117 S. Ct. 2157 (1997). Boerne found unconstitutional the Religious Freedom Restoration Act ("RFRA"). There has developed a vast literature of scholarly discussions of Smith, RFRA, Boerne, and their effects on Free Exercise Clause adjudication. See, e.g., Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539 (1995) (arguing that RFRA is unconstitutional because it violates the principles of Federalism and separation of powers); Robert F. Drinan, Reflections on the Demise of the Religious Freedom Restoration Act, 86 Geo. L.J. 101 (1997) (warning that the decision to strike down RFRA may be just the beginning of a struggle between the Supreme Court, Congress, and the American people); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994) (arguing that RFRA is unconstitutional because it violates principles of religious freedom, exceeds legitimate federal authority, and impermissibly binds the Judiciary); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 333-59 (reviewing Smith and the subsequent passage and constitutionality of RFRA); Eugene Gressman & Angela C. Carmella, RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65 (1996) (arguing that RFRA is unconstitutional, a bad precedent for future Congresses that aim to undo Supreme Court decisions, and an unfortunate response to Smith); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994) (asserting that RFRA is unconstitutional, and arguing that the solution to the problems raised by Smith may be found through a more thoughtful and vigorous Supreme Court); Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209 (1994) (analyzing the legislative history of RFRA); Michael M. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997) (arguing that RFRA is a valid exercise of congressional power under Section 5 of the Fourteenth Amendment); William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 Duke L.J. 291 (1996) (arguing that RFRA oversteps the bounds of congressional power under Section 5 of the Fourteenth Amendment); Symposium: The Religious Freedom Restoration Act, 56 Mont. L. Rev. 5 (1995) (a collection of articles on RFRA).
17. 117 S. Ct. 2157 (1997). Boerne found unconstitutional the Religious Freedom Restoration Act ("RFRA"). There has developed a vast literature of scholarly discussions of Smith, RFRA, Boerne, and their effects on Free Exercise Clause adjudication. See, e.g., Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand. L. Rev. 1539 (1995) (arguing that RFRA is unconstitutional because it violates the principles of Federalism and separation of powers); Robert F. Drinan, Reflections on the Demise of the Religious Freedom Restoration Act, 86 Geo. L.J. 101 (1997) (warning that the decision to strike down RFRA may be just the beginning of a struggle between the Supreme Court, Congress, and the American people); Christopher L. Eisgruber & Lawrence G. Sager, Why the Religious Freedom Restoration Act is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994) (arguing that RFRA is unconstitutional because it violates principles of religious freedom, exceeds legitimate federal authority, and impermissibly binds the Judiciary); Kent Greenawalt, Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses, 1995 Sup. Ct. Rev. 323, 333-59 (reviewing Smith and the subsequent passage and constitutionality of RFRA); Eugene Gressman & Angela C. Carmella, RFRA Revision of the Free Exercise Clause, 57 Ohio St. L.J. 65 (1996) (arguing that RFRA is unconstitutional, a bad precedent for future Congresses that aim to undo Supreme Court decisions, and an unfortunate response to Smith); Marci A. Hamilton, The Religious Freedom Restoration Act: Letting the Fox into the Henhouse Under Cover of Section 5 of the Fourteenth Amendment, 16 Cardozo L. Rev. 357 (1994) (asserting that RFRA is unconstitutional, and arguing that the solution to the problems raised by Smith may be found through a more thoughtful and vigorous Supreme Court); Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 Tex. L. Rev. 209 (1994) (analyzing the legislative history of RFRA); Michael M. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153 (1997) (arguing that RFRA is a valid exercise of congressional power under Section 5 of the Fourteenth Amendment); William W. Van Alstyne, The Failure of the Religious Freedom Restoration Act Under Section 5 of the Fourteenth Amendment, 46 Duke L.J. 291 (1996) (arguing that RFRA oversteps the bounds of congressional power under Section 5 of the Fourteenth Amendment); Symposium: The Religious Freedom Restoration Act, 56 Mont. L. Rev. 5 (1995) (a collection of articles on RFRA).
18. 265 A.2d 453 (Md. 1970).
19. Id. at 454.
20. Id. at 454, 457.
21. Id. at 455.
22. Id.
23. 374 U.S. 398 (1963).
24. Id. at 406.
25. McMillan, 265 A.2d at 456.
26. Id. at 456 (quoting Sherbert, 374 U.S. at 403).
27. Id. at 456-57; see also United States v. Ballard, 322 U.S. 78, 86-88 (1944) (holding that courts may not inquire into the validity of a particular religious belief).
28. McMillan, 265 A.2d at 457.
29. Id.
30. 386 A.2d 1112 (R.I. 1978).
31. Id. at 1113-14.
32. Id. at 1113.
33. Id.
34. Id.
35. Id. at 1114
36. 406 U.S. 205 (1972).
37. Palmer, 386 A.2d at 1115.
38. Id. at 1116.
39. Id.
40. 407 N.Y.S.2d 587 (App. Div. 1978).
41. Id. at 588.
42. Id.
43. Id.
44. Id.
45. 642 So. 2d 613 (Fla. Dist. Ct. App. 1994).
46. Id. at 615.
47. Id. at 614-15.
48. Id. at 613-15.
49. Sherbert v. Verner, 374 U.S. 398 (1963).
50. Joseph, 642 So. 2d at 615 (citing International Soc'y for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430 (2d Cir. 1981)); see also United States v. Lee, 455 U.S. 252, 257 (1982) (stating that "[c]ourts are not arbiters of scriptural interpretation" and that it was beyond "the judicial function and judicial competence" to determine whether Lee or the government had correctly interpreted the Amish faith, and "therefore accept[ing] appellee's contention that both payment and receipt of social security benefits is [sic] forbidden by the Amish faith" (quoting Thomas v. Review Bd., 450 U.S. 707, 716 (1981))); Thomas, 450 U.S. at 716 (accepting Thomas's claim that his religion required him to quit his job, because "it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith," and because "it is clear that Thomas terminated his employment for religious reasons").
51. Joseph, 642 So. 2d at 615.
52. Id.
53. No. 85-C9259, 1987 U.S. Dist. LEXIS 3374 (N.D. Ill. Apr. 23, 1987), aff'd, 845 F.2d 1023 (7th Cir. 1988).
54. Id. at *1-*2.
55. Id. at *2.
56. Id. at *2-*3. The court's acceptance of the plaintiff's interpretation of his religious requirements is apparently consistent with United States Supreme Court opinions in Thomas v. Review Board, 450 U.S. 707 (1981) and United States v. Lee, 455 U.S. 252 (1982). See supra note 41. For an analysis of the Court's consideration of whether an individual is actually "required" by religious belief to wear a particular religious garb, see discussion infra note 98.
57. Spanks-El, 1987 U.S. Dist. LEXIS 3374, at *3.
58. Id. at *9.
59. 695 S.W.2d 171 (Tenn. 1985).
60. Id. In the order adjudicating the defendant in contempt, the trial judge described the defendant as dressed in a grossly shocking and bizarre attire, consisting of brown and white fur tied around his body at his ankles, loins and head, with a like vest made out of fur, and complete with eye goggles over his eyes. He had colored his face and chest with a very pale green paint or coloring. He had what appeared to be a human skull dangling from his waist and in his hand he carried a stuffed snake. Id. at 171 n.1. The Supreme Court of Tennessee further observed, based on photographs of the defendant at the trial, that the so-called vest consisted of two pieces of fur that covered each arm but did not meet in front or in back, leaving defendant's chest and back naked to his waist. His legs were also naked from mid-way between his knee and waist to his ankles. He appeared to be carrying a military gas mask and other unidentifiable ornaments. Id.
61. Id. at 172.
62. Id.
63. Id.
64. Id. at 172-73.
65. Id. at 173.
66. Id. A number of scholars, noting that the United States Supreme Court has not defined religion under the First Amendment, have attempted to offer potential working definitions. See, e.g., Jesse H. Choper, Defining "Religion" in the First Amendment, 1982 U. Ill. L. Rev. 579; Kent Greenawalt, Religion as a Concept in Constitutional Law, 72 Cal. L. Rev. 753 (1984); Steven D. Jamar, Accommodating Religion at Work: A Principled Approach to Title VII and Religious Freedom, 40 N.Y.L. Sch. L. Rev. 719, 748-49 nn.138-41 (1996) (citing these and other attempts to develop a definition of religion, as well as critiques of such efforts).
67. Id. A number of scholars, noting that the United States Supreme Court has not defined religion under the First Amendment, have attempted to offer potential working definitions. See, e.g., Jesse H. Choper, Defining "Religion" in the First Amendment, 1982 U. Ill. L. Rev. 579; Kent Greenawalt, Religion as a Concept in Constitutional Law, 72 Cal. L. Rev. 753 (1984); Steven D. Jamar, Accommodating Religion at Work: A Principled Approach to Title VII and Religious Freedom, 40 N.Y.L. Sch. L. Rev. 719, 748-49 nn.138-41 (1996) (citing these and other attempts to develop a definition of religion, as well as critiques of such efforts).
68. Id. A number of scholars, noting that the United States Supreme Court has not defined religion under the First Amendment, have attempted to offer potential working definitions. See, e.g., Jesse H. Choper, Defining "Religion" in the First Amendment, 1982 U. Ill. L. Rev. 579; Kent Greenawalt, Religion as a Concept in Constitutional Law, 72 Cal. L. Rev. 753 (1984); Steven D. Jamar, Accommodating Religion at Work: A Principled Approach to Title VII and Religious Freedom, 40 N.Y.L. Sch. L. Rev. 719, 748-49 nn.138-41 (1996) (citing these and other attempts to develop a definition of religion, as well as critiques of such efforts).
69. Hodges, 695 S.W.2d at 173 (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)).
70. Id. at 173.
71. 450 U.S. 707 (1981).
72. Hodges, 695 S.W.2d at 173 (quoting Thomas, 450 U.S. at 714).
73. Id. (quoting Thomas, 450 U.S. at 715).
74. Id.
75. 124 A. 191 (Penn. 1924).
76. Id. at 191.
77. Id. at 191-92.
78. Id. at 193.
79. Id.
80. Id.
81. Id.
82. Id.
83. 258 N.Y.S.2d 10 (App. Term 1965).
84. Id. at 12.
85. Id.
86. Id. at 12-13.
87. In the later case of Vincent LaRocca, see infra notes 83-87 and accompanying text, the Appellate Division upheld a trial court's authority to preclude a priest from wearing a clerical collar when serving as an attorney. Noting that the trial court did not prohibit priests from wearing the collar as a spectator, a witness, or a party, the Appellate Division referred to the special "relationship between the court and an attorney [as a] more intimate and more subject to regulation than . . . the status of a spectator, witness, or party." LaRocca v. Lane, 366 N.Y.S.2d 456, 460 (App. Div.), aff'd, 338 N.E.2d 606 (N.Y. 1975); see also LaRocca v. Gold, 662 F.2d 144, 149 (2d Cir. 1981) ("[T]here are often factors present which justify the balance being struck in favor of permitting parties and witnesses to exhibit clerical or religious affiliations while prohibiting lawyers, who are officers of the court, from doing so.").
88. LaRocca v. Lane, 353 N.Y.S.2d 867 (Sup. Ct. 1974), rev'd, 366 N.Y.S.2d 456 (App. Div.), aff'd, 338 N.E.2d 606 (N.Y. 1975).
89. Id. at 868.
90. Id.
91. Id. at 870.
92. Id. at 871-72. The court's analysis thus relied in large part on the familiarity of a clerical collar or a yarmulke. A similar approach was applied by Justice Brennan, who argued in Goldman v. Weinberger, 475 U.S. 503, 518 (1986) (Brennan, J., dissenting), that "[i]t cannot be seriously contended that a serviceman in a yarmulke presents so extreme, so unusual, or so faddish an image that public confidence in his ability to perform his duties will be destroyed." It is not clear whether this approach would protect those who wish to wear less familiar religious garb, which might have a more pronounced effect on a jury or on military personnel. Indeed, Justice Brennan allowed for the possibility that the Air Force could prohibit turbans, saffron robes, and dreadlocks, if a court found a "reasoned basis" for such prohibitions. Id. at 519 (Brennan, J., dissenting).
93. LaRocca, 353 N.Y.S.2d at 872.
94. LaRocca v. Lane, 366 N.Y.S.2d 456 (App. Div.), aff'd, 338 N.E.2d 606 (N.Y. 1975).
95. Id. at 461.
96. Id. at 463-64.
97. Id. at 464.
98. Id.
99. 374 U.S. 398 (1963).
100. LaRocca, 366 N.Y.S.2d at 466-71 (Shapiro, J., dissenting).
101. Id. at 471 (Shapiro, J., dissenting).
102. LaRocca v. Lane, 338 N.E.2d 606 (N.Y. 1975).
103. Id. at 612-13.
104. Id. at 613
105. Id.
106. Id.
107. Id.
108. LaRocca v. Lane, 366 N.Y.S.2d 456, 470 (App. Div.), aff'd, 338 N.E.2d 606 (N.Y. 1975) (Shapiro, J., dissenting).
109. Justice Shapiro based his criticism of the majority on Justice Jackson's majority opinion in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), which stated that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Id. at 642. Justice Shapiro's reasoning, that a judge therefore "certainly" may not rule on what is a cardinal principle of a person's faith, is less than convincing. Justice Jackson's words prohibit a judge from prescribing to an individual a particular belief; they do not necessarily preclude a judge from analyzing the structure of an individual's professed religious system. A Supreme Court case that might better support Justice Shapiro's view was decided a number of years later. In Thomas v. Review Bd., 450 U.S. 707 (1981), the Court accepted the petitioner's depiction of his religion because "it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith." Id. at 716; see also supra notes 41, 47. More recently, the Supreme Court also refused to judge the "centrality" of a religious practice within a religious system, because such an inquiry offers us the prospect of this Court's holding that some sincerely held religious beliefs and practices are not "central" to certain religions, despite protestations to the contrary from the religious objectors who brought the lawsuit. In other words . . . to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that we were never intended to play. Lyng v. Northwest Indian Cemetery Protective Assoc., 485 U.S. 439, 457-58 (1988). For a critique of the Court's approach in these and other cases, see Samuel J. Levine, Rethinking the Supreme Court's Hands-Off Approach to Questions of Religious Practice and Belief, 25 Ford. Urb. L.J. 85 (1998).
110. LaRocca v. Lane, 338 N.E.2d 606, 613 (N.Y. 1975).
111. See LaRocca v. Gold, 662 F.2d 144, 146 (2d Cir. 1981).
112. 258 N.Y.S.2d 10 (App. Term 1965).
113. See supra notes 68-69 and accompanying text.
114. 338 N.E.2d 606 (N.Y. 1975).
115. See LaRocca, 662 F.2d at 146.
116. People v. Rodriguez, 424 N.Y.S.2d 600 (Sup. Ct. 1979).
117. Id. at 602.
118. Id.
119. Id.
120. Id.
121. Id. at 604.
122. Id.
123. Id.
124. Id.
125. Id.
126. Id.
127. 407 N.Y.S.2d 587 (App. Div. 1978); see also supra notes 31-35 and accompanying text.
128. 407 N.Y.S. 2d at 588.
129. Id.
130. Rodriguez, 424 N.Y.S.2d at 605. In employing this logic, the court expressly disputed part of the Appellate Division's analysis in Weinberger. Id. The Appellate Division had accepted as binding the Court of Appeals decision in LaRocca, but had distinguished its case from LaRocca on the grounds that the prejudice resulting from an attorney in religious garb would be greater than that from a party's wearing a religious symbol. Id. The court in Rodriguez, which rejected LaRocca, disagreed with this reasoning, and, in fact, found the converse to be a more realistic description of juror responses. Id.
131. 374 U.S. 398 (1963).
132. Rodriguez, 424 N.Y.S.2d at 606.
133. Id.
134. Id. at 608.
135. Gold v. McShane, 426 N.Y.S.2d 504, 505 (App. Div. 1980).
136. See LaRocca v. Gold, 662 F.2d 144, 147 (2d Cir. 1981).
137. Id. at 149.
138. 418 N.Y.S.2d 744 (Crim. Ct. 1979).
139. Id. at 745 (citing LaRocca v. Lane, 366 N.Y.S.2d 456, 460 (App. Div.), aff'd 338 N.E.2d 606 (N.Y. 1975)); see also supra note 76.
140. 418 N.Y.S.2d at 745-46.
141. Id. at 746.
142. Id. at 747.
143. Id.
144. See LaRocca v. Gold, 662 F.2d 144, 150 (2d Cir. 1981).
145. 692 F.2d 863 (2d Cir. 1982).
146. Id. at 869.
147. Id. at 869 n.8.
148. Id.
149. Id.
150. Id.
151. Id.
152. 652 A.2d 767 (N.J. Super. Ct. App. Div. 1995).
153. Id. at 770.
154. In re Palmer, 386 A.2d 1112 (R.I. 1978); see supra notes 21-30 and accompanying text.
155. Joseph v. State, 642 So. 2d 613 (Fla. Dist. Ct. App. 1994); see supra notes 36-43 and accompanying text.
156. Ryslik, 652 A.2d at 771.
157. Id. The court's unequivocal statement, without elaboration, support, or further investigation, that the priest was not required to wear his clerical collar during court proceedings, is somewhat problematic. See supra notes 41, 47, 98.
158. Ryslik, 652 A.2d at 772, 772 n.3. Under unique circumstances, courts have prohibited courtroom spectators from wearing religious garb. In United States v. Yahweh, 779 F. Supp. 1342 (S.D. Fla. 1992), the United States District Court for the Southern District of Florida presided over a racketeering conspiracy case against nineteen members of a religious organization, the Nation of Yahweh, for numerous acts of violence. Id. at 1343. At an early status hearing, the court observed more than sixty courtroom spectators wearing the traditional garb of the religious group, a white turban and a long white robe. Id. Concerned about the possible intimidating effects on a jury, the court suggested that spectators be prohibited from dressing in the religious garb. Id. In the interest of guaranteeing a fair trial for the public and the government, as well as for the defendants, the court ruled that there should be no "uniforms" in the courtroom. Id. Thus, the court ordered that neither witnesses, including Metro-Dade Department of Public Safety witnesses, nor spectators, would be permitted to wear their "uniforms" in the courtroom. Id. at 1344. The court did make an exception for the defendants, permitting them to dress in their religious garb because their only other clothes would identify them to the jury as prison inmates. Id. at 1344-45. This issue arose again in the trial of Oklahoma City bombing suspects Timothy McVeigh and Terry Nichols. United States District Court Judge Richard Matsch prohibited courtroom observers from wearing any religious symbols. Stephen Gascoyne, Nichols Lawyer: Rights Were Violated, U.P.I., June 29, 1996, available in LEXIS, News Library, UPI File.
159. Scott v. Commonwealth, 497 S.W.2d 561, 563 (Ky. 1973).
160. Id. (citing defendant's brief).
161. Id.
162. Id.
163. Id.
164. Id.
165. 449 U.S. 39 (1980) (per curiam).
166. 403 U.S. 602 (1971).
167. Id. at 612-13 (citations omitted).
168. Stone, 449 U.S. at 41.
169. Id. (quoting Ky. Rev. Stat. Ann. § 158.178 (Michie 1996)).
170. Id. at 41.
171. Id. at 43 (Rehnquist, J., dissenting).
172. Id. at 45 (Rehnquist, J., dissenting).
173. Id. at 45 n.2 (Rehnquist, J., dissenting).
174. Harvey v. Cobb County, 811 F. Supp. 669 (N.D. Ga. 1993), aff'd, 15 F.3d 1097 (11th Cir. 1994).
175. Id. at 671. The court used the term "Great Commandment" for the following statements that followed the text of the Ten Commandments in the display: "Jesus said: 1. Thou shall love the LORD thy GOD with all thy heart, and with all thy soul, and with all thy mind. 2. Thou shall love thy neighbor as thy self. On these two commandments hang all the law and the prophets." Id. at 672. The court cited the trial testimony of a rabbi, who noted that these statements, excluding lhe reference to Jesus, are found in Jewish sources that preceded Christianity. Id. The first commandment is "one of the fundamental Jewish creeds found in Deuteronomy." Id.; see also Deuteronomy 6:5, 11:13. The second commandment is taken from Leviticus. Leviticus 19:18. Finally, the third part of the quotation "is actually a paraphrase borrowed from Rabbinic literature by Rabbi Hillel, which precedes even the birth of Jesus." Harvey, 811 F. Supp. at 672; see also Talmud Bavli, Sabbath 31a; Rashi, Commentaries on the Pentateuch 126 (1970) (discussing Leviticus 19:18 and citing Rabbi Akiva's statement that the biblical verse "love your neighbor as yourself" is "a fundamental principle of the Torah").
176. Id. at 677-78.
177. See County of Allegheny v. ACLU, 492 U.S. 573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984).
178. Harvey, 811 F. Supp. at 676. For an analysis of the Court's current application of the Lemon test to Establishment Clause issues such as the display of religious symbols in public areas, see Greenawalt, supra note 8, at 359-79.
179. 492 U.S. 573 (1989).
180. Harvey, 811 F. Supp. at 676-77.
181. Allegheny, 492 U.S. at 598.
182. Id.
183. Id. at 598-99.
184. Id. at 598-600.
185. Id. at 601.
186. Harvey v. Cobb County, 811 F. Supp. 669, 676-77 (N.D. Ga. 1993), aff'd, 15 F.3d 1097 (11th Cir. 1994).
187. Allegheny, 492 U.S. at 613 (opinion of Blackmun, J.).
188. Id. at 585.
189. Id. at 582, 587.
190. Id. at 616-18 (opinion of Blackmun, J.).
191. Harvey, 811 F. Supp. at 677-78.
192. Id. at 677. The court further stated that "the panel's association with the Christian tradition is accentuated by the language of the Sixth Commandment prohibiting killing," i.e., "Thou shall not kill." Id. at 672, 677. According to the trial testimony of a rabbi, this statement represents a "mistranslation of the original Hebrew, which prohibits murder, and frequently appears in Christian versions of the Ten Commandments." Id. at 677. It is not clear why the court emphasized the specifically Christian character of the Ten Commandments display. In Stone v. Graham, 449 U.S. 39 (1980) (per curiam), the Supreme Court had declared unconstitutional the display of the Ten Commandments in public schools, because it found that the Ten Commandments "are undeniably a sacred text in the Jewish and Christian faiths." Id. at 41. In any event, the rabbi apparently did not testify about other discrepancies between the courtroom display and Jewish tradition regarding the passages in Exodus where the Ten Commandments are found. Exodus 20:1-17; cf. Deuteronomy 5:6-21. For example, the display listed as the First Commandment "Thou shalt have no other gods before me." Harvey, 811 F. Supp. at 671. This commandment is found in Exodus in the third verse of Chapter 20. According to most Jewish biblical commentaries, the first commandment in the chapter is actually found in the preceding verse which states, "I am the Lord, your God, Who took you out of slavery in Egypt." Exodus 20:2; see, e.g., Maimonides, Book of Commandments. Moreover, the display translated the Eighth Commandment as "Thou shalt not steal." Harvey, 811 F. Supp. at 672. According to Jewish tradition, however, a more precise translation would be a prohibition against kidnapping, which is a capital crime, consistent with the preceding prohibitions against murder and adultery, also capital crimes. The prohibition against stealing is found elsewhere, in Leviticus 19:11. See Rashi, supra note 164, at 93 (discussing Exodus 20:13). The very title of the display, "The Ten Commandments," is not fully consistent with Jewish biblical interpretation, which identifies more than ten commandments in this segment of the Torah. The biblical phrase used for this segment of the Torah is, in fact, Aseret Ha-devarim, Deuteronomy 4:13, which means roughly "the ten words" or "the ten statements." Indeed, this phrase is apparently the source of the term "Decalogue," also meaning "ten words," and used by Christians as well to refer to this segment of the Torah. According to Jewish tradition, although these verses can be divided into ten statements, some of the statements consist of more than one commandment. Thus, these verses as a whole actually contain more than ten commandments. See Walter Harrelson, The Ten Commandments and Human Rights 47 (1980); Maimonides, supra.
193. 449 U.S. 39 (1980) (per curiam); see supra notes 156-59 and accompanying text.
194. Harvey, 811 F. Supp. at 678.
195. Id.
196. Id.
197. Id.
198. Id.
199. Id. at 678-79 (quoting County of Allegheny v. ACLU, 492 U.S. 573, 652-53 (1989) (Stevens, J., concurring in part and dissenting in part)).
200. Allegheny, 492 U.S. at 652 (Stevens, J., concurring in part and dissenting in part).
201. Id. (Stevens, J., concurring in part and dissenting in part).
202. Id. at 652-63 (Stevens, J., concurring in part and dissenting in part).
203. Harvey, 811 F. Supp. at 678.
204. Harvey v. Cobb County, 15 F.3d 1097 (11th Cir. 1994).
205. 894 F. Supp. 927 (W.D.N.C. 1995).
206. Id. at 929.
207. Id.
208. Suhre v. Haywood County, No. 94-CV-179, 1997 U.S. Dist. LEXIS 5013, at *4 (W.D.N.C. Mar. 17, 1997), rev'd and remanded, 131 F.3d 1083 (4th Cir. 1997).
209. Suhre, 894 F. Supp. at 929-30.
210. Id. at 930.
211. Id. at 930 & n.2.
212. Id. at 930.
213. Id.
214. Id.
215. Id. at 931.
216. Id. at 930.
217. Id. at 932.
218. Id.
219. Id.
220. See Berkeley v. Common Council of Charleston, 63 F.3d 295 (4th Cir. 1995).
221. Suhre v. Haywood County, No. 94-CV-179, 1997 U.S. Dist. LEXIS 5013 (W.D.N.C. Mar. 17, 1997), rev'd and remanded, 131 F.3d 1083 (4th Cir. 1997).
222. Id. at *16.
223. Id. at *17 (quoting Valley Forge, Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 470 (1982)) (alteration in original).
224. 811 F. Supp. 669 (N.D. Ga. 1993), aff'd, 15 F.3d 1097 (11th Cir. 1994).
225. Suhre, 1997 U.S. Dist. LEXIS 5013, at *18 (quoting Harvey, 811 F. Supp. at 672).
226. Id. at *17 (quoting Valley Forge, 454 U.S. at 485-86) (emphasis added).
227. Id. at *19.
228. Id. at *20 n.9. While Judge Thornburg accurately observed that the display in Harvey made reference to Jesus, it is less than clear that the precept cited was "singularly associated" with Christianity. As the court in Harvey noted, based on the testimony of a rabbi, the substance of the "Great Commandment," with the exclusion of the reference to Jesus, is found in Jewish sources that preceded Christianity. See Harvey, 811 F. Supp. at 672; supra note 181.
229. 492 U.S. 573 (1989); see supra notes 177-78 and accompanying text.
230. Suhre, 1997 U.S. Dist. LEXIS 5013, at *20 n.9.
231. Id. at *8.
232. Id. at *23-*24.
233. Id. at *24-*25.
234. See id. at *25-*33.
235. Suhre v. Haywood County, 131 F.3d 1083, 1085 (4th Cir. 1997).
236. State ex rel. James, No. 1951975, 1998 Ala. LEXIS 19, at *20 (Ala. Jan. 23, 1998).
237. 893 F. Supp. 1522 (N.D. Ala. 1995); see also Ex rel. James, 1998 Ala. LEXIS 19, at *3-*4, *7.
238. In 1990, federal courts considered the constitutionality of courtroom prayer in the case of North Carolina Judge H. William Constangy. After the bailiff's opening cry, Judge Constangy regularly stated "Let us pause for a moment of prayer," and then recited a prayer that he had composed. North Carolina Civil Liberties Union v. Constangy, 751 F. Supp. 552, 552-53 (W.D.N.C. 1990), aff'd, 947 F.2d 1145 (4th Cir. 1991). The United States District Court for the Western District of North Carolina held that the prayer failed all three prongs of the Lemon test. Id. at 554. The United States Court of Appeals for the Fourth Circuit affirmed the District Court opinion, also holding that the prayer failed all three prongs of the Lemon test. 947 F.2d at 1151-52. Among other concerns, the court found that "prayer in the courtroom by a judge is a religious act by a government official with little historical support," which serves to "inject religion into the judicial process and destroy the appearance of neutrality." Id.
239. Moore, 893 F. Supp. at 1542-43; see also Ex rel. James, 1998 Ala. LEXIS 19, at *14.
240. Ten Commandments, Courtroom Prayer Timeline, Montgomery Advertiser, Apr. 12, 1997, at 5A; Ex rel. James, 1998 Ala. LEXIS 19, at *4-*17.
241. Sandee Richardson, Hundreds Rally in Support of Judge in Prayer Case, Montgomery Advertiser, Sept. 12, 1996, at 1A.
242. Ex rel. James, 1998 Ala. LEXIS 19, at *18.
243. Id. at *18-*19.
244. Id. at *18.
245. Sandee Richardson, Judge Plans to Defy Order Not to Pray, Montgomery Advertiser, Nov. 23, 1996, at 1A.
246. Id.
247. Sandee Richardson, ACLU Continues Battle with Judge, Montgomery Advertiser, Dec. 10, 1996, at 1B.
248. Sandee Richardson, James Denounces Courtroom Prayer Ruling, Montgomery Advertiser, Feb. 6, 1997, at 2B.
249. Ex rel. James, 1998 Ala. LEXIS 19, at *19; Sandee Richardson, Commandments Display Judged Unconstitutional, Montgomery Advertiser, Feb. 11, 1997, at 1A.
250. 811 F. Supp. 669 (N.D. Ga. 1993), aff'd, 15 F.3d 1097 (11th Cir. 1994); see supra note 192 and accompanying text.
251. Ex rel. James, 1998 Ala. LEXIS 19, at *19.
252. Richardson, supra note 230, at 1A.
253. Rick Bragg, Judge Allows God's Law to Mix with Alabama's, N.Y. Times, Feb. 13, 1997, at A14.
254. Sandee Richardson, High Court Ruling Delays Ten Commandments Case, Montgomery Advertiser, Feb. 20, 1997, at 1A.
255. Sandee Richardson, Prayer in the Courtroom Support for Praying Judge Split, Montgomery Advertiser, Feb. 25, 1997, at 1A.
256. House Backs Ten Commandment Display, N.Y. Times, March 6, 1997, at B10.
257. Sandee Richardson, Bills Would Let Officials Hang Ten, Montgomery Advertiser, March 6, 1997, at 1A.
258. Anne Sclater, Commandments Judge Hailed; Judge Takes Case to Nation's Capital, Montgomery Advertiser, March 21, 1997, at 1A.
259. Sandee Richardson, Supporters of Gadsden Judge Collect Nearly 215,000 Petitions, Montgomery Advertiser, Apr. 4, 1997, at 1B.
260. Sandee Richardson, Before the Rally Thousands to Gather in Support of Judge, Montgomery Advertiser, Apr. 12, 1997, at 1A.
261. Sandee Richardson, Rally Draws Thousands; Judge Defends Right of Religion, Montgomery Advertiser, Apr. 13, 1997, at 1A.
262. Digest, Montgomery Advertiser, Apr. 25, 1997, at 7A.
263. State ex rel. James, No. 1951975, 1998 Ala. LEXIS 19, at *20 (Ala. Jan. 23, 1998); see also id. at *66-*70 (Maddox, J., concurring in the result) (listing the amici and outlining their arguments).
264. Id. at *20.
265. Id. at *38.
266. Id.
267. 441 N.E.2d 1057 (N.Y. 1982).
268. Id. at 1060-61.
269. People v. Knapp III, 495 N.Y.S.2d 985, 989 (App. Div. 1985).
270. Id.
271. Id.
272. Id. (quoting People v. Rose, 368 N.Y.S.2d 387, 391 (Rockland County Ct. 1975)).
273. Id.
274. Id.
275. Id.
276. Id. Thus, the court appeared to embrace a form of what the Supreme Court later called "ceremonial deism." In his plurality opinion in County of Allegheny v. ACLU, Justice Blackmun referred to legislative prayer and the Court's invocation as examples of "ceremonial deism," "a form of acknowledgment of religion that 'serve[s], in the only wa[y] reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.'" 492 U.S. 573, 596 n.46 (1988) (quoting Lynch v. Donnelly, 465 U.S. 668, 693 (1984) (O'Connor, J., concurring)). One commentator has argued, in an article offering an extensive discussion and critique of ceremonial deism, that the courtroom oath itself violates the Establishment Clause. Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 Colum. L. Rev. 2083, 2146 (1996).
277. Knapp III, 495 N.Y.S.2d at 989.
278. Knapp v. Leonardo, 46 F.3d 170 (2d Cir. 1995).
279. Id. at 177.
280. Id. (quoting Knapp III, 495 N.Y.S.2d at 989). The Appellate Division actually presented this finding to counter the defendant's claim that he had been denied the right to a public trial, not in response to his claim that the religious setting of the trial violated his right to a fair trial. See Knapp III, 495 N.Y.S.2d at 989.
281. Knapp, 46 F.3d at 177.
282. Id. at 181 (Oakes, J., dissenting).
283. Id. (Oakes, J., dissenting).
284. Id. at 182 (Oakes, J., dissenting).
285. Id. (Oakes, J., dissenting) (emphasis added).
286. It is notable that Judge Oakes did not acknowledge the phrase, "In God We Trust," which contains the word "God" in English, and is present on the wall of many courtrooms throughout the United States.
287. Id. (Oakes, J., dissenting).
288. Id. (Oakes, J., dissenting).
289. Id. (Oakes, J., dissenting). In Society of Separationists v. Herman, 939 F.2d 1207 (5th Cir. 1991), aff'd en banc, 959 F.2d 1145 (5th Cir. 1992), the United States Court of Appeals for the Fifth Circuit held that a Texas state judge violated a potential juror's free exercise rights when he jailed her for refusing, pursuant to her atheistic beliefs, to take a pre-voir dire oath. Id. at 1209.
290. Knapp, 46 F.3d at 182 (Oakes, J., dissenting) (quoting Jefferies, C.J., in Lady Lisle's Trial, 11 How. St. Tr. 298, 325 (1685) (quoted in 6 Wigmore on Evidence s. 1816, at 383 (Chadbourn Rev. 1976))).
291. Id.
292. Id.
293. See generally, Greenawalt, supra note 8.
294. Karst, supra note 3, at 529.
295. Id. at 530.