The Impact of Justice Scalia's Replacement on Gender Equality Issues

평등에 대한 젠더적 이해는 성평등을 완성하는 필수불가결한 근본조건이다. 성불평등현실문제의 근본적 해소와 실질적 성평등을 구현하기 위해서는 젠더적 관점이 입법과 규범해석에 반영되고 평가되어야 한다. 헌법의 이상이 ‘모든 개인’의 인간존엄과 가치의 실현, 자유와 평등에 관한 기본권의 보장이라는 점에서 성평등 규범의 해석과 실현도 이와 동일한 이상을 지향하여야 한다. 즉, ‘모든 개인’의 성차에 따른 불평등 시정의 추구가 헌법적으로 보장되어야 하며, 여기에 특정집단이 배제되지 않아야 한다. 성불평등 현실의 개선을 위해서는 국가의 역할과 개입이 중요하다. 국가의 성평등 실현조치는 궁극적으로 개인의 인간존엄을 실현하는 방향으로 추구되어야 하며, 특히 불평등의 주체가 정치적 주체로서 목소리를 낼 수 있도록 참여를 보장하는 것이 무엇보다 중요하다는 점에서 민주주의와 성평등은 분리될 수 없으며, 그 연관성이 강조되어야 한다. 한편, 미국 수정조항 제1조는 종교의 자유를 규정하고 있다. 구체적으로 이 조항은 연방의회가 국교를 수립하거나 또는 자유로운 신앙과 종교행위를 금지하는 법률을 제정하는 것을 절대적으로 금지하고 있다. 일반적으로 전자는 국교금지조항(Establishment Clause)으로, 또 후자는 종교행사의 자유조항(Free Exercise Clause)으로 불리고 있다. 여기에 따른다면 국가는 종교와 일정한 정도의 거리를 유지해야 하며 국민의 자유로운 신앙과 종교행위를 침해해서는 안 된다는 결론이 도출된다. 종교행사 자유조항의 경우, 연방대법원은 1990년대 이후 이 조항에 대한 위헌심사기준으로서 1960대 이후에 적용되어 왔던 이익형량론을 포기하고 그 이전의 규제목적론을 부활시켰다. 그러나 규제목적론은 단순히 개인의 신앙 및 종교행위의 자유에 대한 정부의 규제가 단순히 비종교이고 합리적인 의도를 가지고 있는지 여부만을 기준으로 정부규제의 위헌여부를 판단하기 때문에 “종교의 자유의 최대한 보장”이라는 관점에서 본다면 이러한 연방대법원의 입장변경은 바람직하다고 보기는 힘들다. 여기에 따른다면 정부의 규제로 인해 침해되는 개인의 종교의 자유는 거의 고려될 여지가 없다. 반면 이익형량론은 신앙 및 종교행위의 자유에 대한 정부의 규제는 필수적인 공익을 달성하기 위한 것이어야 하며, 이러한 공익을 달성함에 있어서 현재의 규제보다 개인의 종교의 자유를 덜 제한하는 수단이 존재하지 않아야 한다는 것을 요구하는 심사기준이기 때문에 정부의 규제목적 뿐만 아니라 침해되는 개인의 종교의 자유도 충분히 고려될 수 있다.Gender equality is a fundamental understanding of the conditions essential to complete gender equality. Gender Inequality In order to solve the fundamental problem of reality and to realize gender equality, the gender perspective in the constitutional equality discourse should be reflected and evaluated in legislative and normative interpretation. From the point that the ideal of the Constitution is to guarantee all humans’ fundamental rights associated with human dignity, realization of value, freedom, or equality, we can make sure of the conceptual categories and indexes of gender equality norms. The pursuit of power inequality correction according to sex differences of ‘all individuals’ should be guaranteed by constitution, and specific groups should not be excluded. In realizing gender equality, the government’s roles and interventions are crucial. It can be completed only when it is sought and practiced in close relations with other principles of the Constitution, for instance, constitutionalism, social/national principles, or democracy. Particularly, it is more important than anything else to guarantee the right of the subjects of inequality to participate in politics and have their own voice, which means democracy is inseparable from gender equality. The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These religion clauses of the First Amendment impose two restrictions. First, the Establishment Clause requires a degree of separation between church and state. Second, the Free Exercise Clause recognizes a sphere of religious liberty that Congress cannot invade. The expansion of governmental activity impinging on religious practices and religiously motivated action has also contributed to the rise in litigation, as has increasing religious diversity in the United States. Alongside the Court’s greater involvement in disputes over religion has come intense controversy. This article examines how the U.S. Supreme Court has interpreted the Establishment and Free Exercise Clauses in the U.S. Constitution and analyzes the continuing debate over the meaning of those provisions.

Praying for America: The Constitutional Ban on Animus-Based and Theocratic Reasoning in the Establishment, Free Exercise and Equal Protection Clauses

Baptizing the Fourteenth Amendment: Equal Protection and Religion

OUR ANTI-<i>KOREMATSU</i>

Religion and the Equal Protection Clause

Few controversies involving public schools have been more volatile than those pertaining to religious issues. Since the mid-20th century, schools have been the setting for some major church-state decisions rendered by the U.S. Supreme Court. The First Amendment to the U.S. Constitution states in part that shall make no law respecting an establishment of (Establishment Clause) prohibiting the free exercise thereof (Free Exercise Clause). Our nation was unique in including a constitutional provision prohibiting religious establishment. The Supreme Court's first significant Establishment Clause decision in 1947 involved state aid to religious schools and introduced Thomas Jefferson's metaphor of a wall of separation between church and state. (1) This metaphor became prominent in church-state litigation for more than 30 years, though references to the wall have been noticeably missing in recent Supreme Court decisions. Most education cases have involved claims under the Establishment Clause, but some lawsuits have asserted that neutral government policies abridge the Free Exercise Clause by placing a burden on the exercise of religious beliefs without an overriding justification. In the leading free exercise case involving schools, Wisconsin v. Yoder, the Supreme Court ruled that there was no compelling interest for the state to place a burden on the dictates of the Amish faith by requiring Amish youth to attend school beyond 8th grade. (2) In the early 1960s, the Supreme Court rendered two seminal decisions in which it prohibited public schools from sponsoring daily prayer and Bible reading, concluding that such activities advanced religion in violation of the Establishment Clause. (3) Students' voluntary participation in the religious activities was irrelevant; school sponsorship of the devotional activities was sufficient to abridge the First Amendment. These decisions have generated a half century of subsequent litigation, legislative reactions, and efforts to amend the U.S. Constitution to authorize school prayer. From 1971 until 1992, the Supreme Court consistently applied a stringent standard, referred to as the Lemon test, under which the challenged government action could satisfy the First Amendment only if it had a secular purpose, neither advanced nor impeded religion, and avoided excessive government entanglement with religion. (4) Recently, the Court has seemed more inclined to assess whether an objective observer would view the challenged action as endorsing religion, and on occasion the Court has required evidence of religious coercion to find an Establishment Clause violation. Applying the Establishment Clause, the Supreme Court has continued to strike down school-sponsored religious activities, such as posting the Ten Commandments in classrooms, having clergy deliver graduation prayers, and holding student elections to authorize student-led prayers at sporting events. (5) But the Court also has emphasized that private religious expression does not abridge the Establishment Clause and that the Free Speech Clause requires the equal treatment of private religious and secular expression. (6) Not only has the Supreme Court recognized this principle under the First Amendment, but also the Equal Access Act (EAA), adopted by Congress in 1984, has augmented the constitutional standard. The EAA specifies that if secondary schools receiving federal aid create a forum for student expression during noninstructional time, student groups cannot be denied access based on the religious, political, or philosophical content of their expression. (7) The concepts of equal access for religious groups and equal treatment of religious expression seem to have replaced the metaphor of a wall of separation between church and state. Church-state disputes involving schools often divide communities, and there are no signs of these controversies dissipating in the near future. …

The First Amendment's Free Exercise and Establishment Clauses are undoubtedly the most prominent constitutional provisions governing the relationship among religion, the citizenry, and the state. They are, to be sure, frequently described as “ the Religion Clauses.” But they are not the only constitutional provisions that govern this relationship. There is, for example, another and often overlooked clause that expressly deals with religion – the only provision of the unamended Constitution that does so – namely, the Religious Test Clause of Article VI. In addition, the equal protection guarantees of the Fifth and Fourteenth Amendments have been held to protect against discrimination on the basis of one's religious affiliation or conduct. Finally, there is an extensive interrelationship between the First Amendment's religion clauses, especially the Free Exercise Clause, and the best-known provision of that amendment, the Free Speech Clause. This chapter surveys these additional constitutional provisions and specifically how they govern or relate to matters of religion. The Religious Test Clause In the last section of the original Constitution's last substantive article, one finds the following provisions: The Senators and Representatives … and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. The latter clause, which clearly modifies the former, is commonly referred to as the “Religious Test Clause” or, among some scholars, the “No Religious Test Clause.” The Religious Test Clause is perceived by many as an unfamiliar or even irrelevant provision – at best, a distant and curious relative of the First Amendment religion clauses. Perhaps befitting its contemporary obscurity, the Religious Test Clause seems largely to have been uncontroversial when proposed during the drafting of the Constitution. Charles Pinckney of South Carolina submitted an initial draft on August 20, 1787, providing that “[n]o religious test or qualification shall ever be annexed to any oath of office under the authority of the U.S.” After slight modification of the wording, a revised version was then approved on August 30 without significant dissent.

RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion

In the previous chapter I referred to “ the religion clauses” as if they constituted a unitary provision. This undifferentiated treatment may seem to overlook a critical distinction. It is conceivable, after all, that the establishment clause was a purely jurisdictional measure but that the free exercise clause was more than that. Arguing in this vein, some scholars have acknowledged the difficulty of extending the establishment clause to the states through “ incorporation” into the Fourteenth Amendment, but have argued that the free exercise clause does contain independent substantive content that can support constitutional restrictions applicable to the national and state governments. The position urged by scholars like Amar necessarily assumes a significant difference in the content and purposes of the establishment and free exercise clauses. In the modern context, that assumption seems natural enough. Judges and scholars have devoted considerable analysis, after all, to explaining how the establishment clause differs from the free exercise clause. This analysis has often depicted the clauses as not merely independent in content but as opposed in their basic purposes: The establishment clause has been understood as prohibiting ( at least in some circumstances) governmental support for or accommodation of religion, while the free exercise clause has been understood as requiring ( at least in some circumstances) governmental accommodation of religion. Extensive analysis has been dedicated to resolving, or at least reducing, this perceived conflict between the clauses.

Understanding the Establishment Clause: A Revisit

In Kennedy v. Bremerton School District,1 the U.S. Supreme Court ruled that the Establishment Clause did not prohibit a high school football coach from offering a brief mid-field prayer at the conclusion of games. The Ninth Circuit had held that the coach’s free exercise rights had to yield to the Establishment Clause’s prohibition of conduct that might reflect a state endorsement of religion. In overturning the Ninth Circuit, the Supreme Court issued an historic and far-reaching ruling on the scope and nature of the Establishment Clause, providing the first truly clarifying decision in this area in the past seventy-five years. The Court held that the Establishment and Free Exercise Clauses were not in tension and that the Establishment Clause could not be used to limit theFree Exercise Clause. Even more profoundly, the Court rejected the use of tests that over time had become hostile to religious liberty. Finally, the Court stated that it would decide future Establishment Clause cases by consulting the historical meaning of the Clause. This Article analyzes the future impact that the Kennedy decision will exert on Establishment Clause jurisprudence.

This paper examines how improvements in women's formal legal rights shape economic and social outcomes across countries. Using the Gender Disparity Index from the Economic Freedom of the World dataset, we analyze cases where countries experienced substantial increases in women's legal rights sustained for at least 5 years. Contrary to expectations, our findings show that such policy changes did not yield better economic and social outcomes. To explain these results, we demonstrate that the average annual gains in de facto property rights for women were greatest before these changes were codified into law. Formal legal advances follow, rather than drive, informal changes in women's social participation and economic roles. This study emphasizes the informal dependency of institutional change and its implications for economic development and social welfare.

A significant body of legal academic writing produced in recent years has argued that one of the primary purposes of the First Amendment's Religion Clauses was to protect freedom of conscience. But in the two decades since the Supreme Court's decision in Employment Division v. Smith, a number of commentators have suggested that freedom of conscience has lost its place as the focus of Free Exercise and Establishment Clause jurisprudence. Indeed, some have gone so far as to argue that protection for freedom of conscience has disappeared from the Free Exercise Clause almost entirely, leaving conduct that is motivated by a religious conscience without special constitutional protection. To be sure, some protection for freedom of conscience remains—but its constitutional source is often to be found outside of the Religion Clauses and its concern is often with non-religious activity.This evolution of doctrine has been extensively criticized by scholars of the Religion Clauses, many of whom view these developments as departures from original intent and from long-settled constitutional practice. Michael McConnell, Martha Nussbaum, and others have also advanced normative critiques, arguing that religious conscience is in many ways distinctive and merits distinctive constitutional solicitude under the Free Exercise Clause. At the same time, the Supreme Court's rejection of special privileges for religious claims of conscience has been welcomed by other scholars, some of whom have argued that preferential protection for religiously-motivated conduct is a form of unconstitutional discrimination. Two of the most prominent proponents of this position are Christopher Eisgruber and Lawrence Sager, who maintain that the Religion Clauses should be read to promote equal liberty rather than to provide special exemptions.

Constitutional Law and the Culture Wars: When Religious Liberty and the Law Conflict, Which Should Prevail?

Recent religious liberty scholarship has focused on the legal rights of churches and similar religious institutions, as distinct from the rights of individual religious believers. Advocates of “the new religious institutionalism” argue that religious institutions need robust legal rights in order to effectuate their institutional functions and advance their members’ interests. The Supreme Court has fueled interest in the new institutionalism by holding, in Hosanna Tabor Evangelical Lutheran Church v. EEOC, that the Constitution protects churches from legal liability for employment discrimination in hiring ministers. In this essay, Professor Magarian argues that the Establishment Clause should place substantial constraints on constitutional or statutory accommodation of religious institutions. Religious accommodation has always operated in tension with nonestablishment values. Since the Court’s 1990 decision in Employment Division v. Smith, however, courts and scholars have given little thought to that tension, because Smith both neutralized the Free Exercise Clause as a source of accommodations and marginalized the Establishment Clause as a check on accommodations. Calls to increase accommodation of religious institutions compel renewed emphasis on the accommodation-nonestablishment tension. Religious institutions play normatively valuable social roles by aggregating believers’ interests and promoting pluralism in public discourse. At the same time, religious institutions are larger and generally more powerful than individual believers, making the stakes of institutional accommodation higher than the stakes of individual accommodation. Professor Magarian contends that the Establishment Clause, whether understood in neutralist or separationist terms, counsels great caution in expanding institutional religious accommodations. He points to the Court’s Hosanna Tabor decision, narrowly construed, and the administrative resolution of the contraception mandate controversy under the Affordable Care Act as normatively appealing templates for reconciling institutional accommodation with nonestablishment.