By: Carl H. Esbeck
It is notable when, in an outbreak of modesty, a liberal democratic state acknowledges that there are limits on its power that have their origin in understandings that preexist the nation’s founding charter but are protected by it. In Kedroff v. St. Nicholas Cathedral (1952), the North American Archdiocese of the Russian Orthodox Church had broken communion with the Patriarchate in Moscow. The cause of the disaffection, coming as it did at the height of the Red Scare, can be summed up by a fear that the Mother Church had been co-opted by Stalinist brutality and Soviet politics. A consequential disagreement involving church polity led to a lawsuit over possession of St. Nicholas Cathedral. Situated in New York City, the Cathedral is the seat and symbol of ecclesiastical authority of the Russian Orthodox faith in all of Canada and the United States.
Permanent Link: https://www.religiousfreedominstitute.org/cornerstone/2016/6/16/freedom-of-the-church
By: Ken Starr
With few exceptions, the Supreme Court had little experience with the Religion Clauses of the First Amendment in the first century of our nation’s existence. This is, in part, due to the express words of the amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It was not until the 1940s that the Court determined these two clauses should be “incorporated,” or act as limitations on states and not just the federal government. Now the Court would be permitted to reach religious oppression where it was more likely to occur—in the interplay between citizens and their state and local governments. (see Madison’s argument in Federalist 10).
Permanent Link: https://www.religiousfreedominstitute.org/cornerstone/2016/6/16/shifting-applicability-a-history-of-judicial-approaches-to-free-exercise