N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Tag: Touro Competition in Law and Religion

The Free Exercise Clause and School Funding: Why a State’s Exclusion of Jewish Orthodox Schools from Funding Does Not Violate the First Amendment

By

On September 17, 2024

In Contributions

by Edward Stein*

Recent disputes over government’s exclusion of religious private schools from public funding shine new light on the Free Exercise Clause of the First Amendment, which commands that the government “shall make no law . . . prohibiting the free exercise” of religion. The Individuals with Disabilities Education Act (“IDEA”) offers states federal funds to assist in educating children with disabilities. The question remains whether a state government’s exclusion of Jewish Orthodox schools from IDEA funding triggers strict scrutiny under the Free Exercise Clause. This Contribution argues that exclusion of Jewish Orthodox schools from IDEA funding does not impose a sufficiently substantial burden on the religious exercise of Jewish Orthodox schools or their students’ families, and thus does not trigger strict scrutiny. First, this Contribution situates this issue by explaining the difference between direct and indirect burdens. Second, it distinguishes Jewish Orthodox parents from prior free exercise claimants to show that they do not face a substantial burden. Finally, it contends that Jewish Orthodox schools are also not subject to a substantial burden because they face a permissible use-based exclusion.

Read More

Religious Accommodation or Unlawful Favoritism? Examining the Constitutionality of the Parsonage Exemption

By

On November 8, 2021

In Contributions

by Alec Soghomonian*

The First Amendment’s Religion Clauses provide that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof . . . .” The Religion Clauses clearly prohibit both the Federal and state governments from establishing an official state religion or hindering religious practice to such an extent that it results in a constitutional infringement. However, the Supreme Court has long acknowledged that absent those two clear commands “there is room for play in the joints” when addressing the constitutionality of government action that implicates religious belief. Does a tax benefit that provides a financial benefit to a limited class of religious employees and their employers violate the Establishment Clause? In this Contribution, Alec Soghomonian (‘22) argues that the Parsonage Exemption, found in 26 U.S.C. § 107(2) of the United States tax code, unlawfully provides a benefit to religious employees and employers because it does not extend to similarly situated non-religious institutions.

Read More

Protecting Prisoners: The Fight on Narrow Tailoring

By

On January 26, 2017

In Contributions

by Staci Cox*

What evidentiary burden must prisons must satisfy in order to show that its policy restricting an inmate’s religious exercise is sufficiently narrowly tailored under Religious Land Use and Institutionalized Persons Act (RLUIPA)? Staci Cox (’17) examines this question, raised at the Touro Law School Moot Court Competition on April 7th, 2016. In assessing whether a prison’s policy that restricts religious exercise is sufficiently narrowly tailored under RLUIPA, courts examine the religious exemptions already provided to inmates within the facility; if no exemptions are already provided, courts ask whether the prison could effectuate its policy through less restrictive means, without unduly burdening other inmates or straining prison operations. This contribution argues that, in order to demonstrate that their policies are sufficiently narrowly tailored under RLUIPA, prisons must satisfy a significant evidentiary burden by showing: the frequency with which current exemptions are used, the costs of providing additional exemptions, and the extent would threaten the safety and security of inmates.

Read More

Powered by WordPress & Theme by Anders Norén