Carl H. Esbeck Publications

Academic Journals

Do Discretionary Religious Exemptions Violate the Establishment Clause?, 106 KENTUCKY LAW JOURNAL 629 (2018).

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Charity for the Autonomous Self, 32 JOURNAL OF LAW AND RELIGION 185 (2017).

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When Religious Exemptions Cause Third-Party Harms: Is The Establishment Clause Violated?, 59 JOURNAL OF CHURCH AND STATE 357 (first published online March 14, 2016; in print 2017).

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Federal Contractors, Title VII, and LGBT Employment Discrimination: Can Religious Organizations Continue to Staff on a Religious Basis?, 4 OXFORD JOURNAL OF LAW AND RELIGION 368 (2015).

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Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause, 7 CHARLESTON LAW REVIEW 607 (2013)

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Defining Religion Down: Hasanna-Tabor, Martinez, and the U.S. Supreme Court, 11 FIRST AMENDMENT LAW REVIEW 1 (2012)

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Religious Freedom, Church-State Separation, & the Ministerial Exception, 106 NORTHWESTERN UNIVERSITY LAW REVIEW COLLOQUY 175 (2011)

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Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 UTAH LAW REVIEW 489 (2011)

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Panel Discussion at "Signs of the Times: The First Amendment and Religious Symbolism, 63 OKLAHOMA LAW REVIEW 67 (2010)

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Taxpayer Standing From Flast to Hein, 80 SUPRA, THE ONLINE COMPANION TO THE MISSISSIPPI LAW JOURNAL 1 (2010)

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Protestant Dissent and the Virginia Disestablishment, 1776-1786, 7 GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY 51 (2009)

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What the Hein Decision Can Tell Us About the Roberts Court and the Establishment Clause, 78 MISSISSIPPI LAW JOURNAL 199 (2008)

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The 60th Anniversary of the Everson Decision and America's Church-State Proposition, 23 JOURNAL OF LAW AND RELIGION 15 (2007-2008)

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When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court’s Analysis, 110 WEST VIRGINIA LAW REVIEW 359 (Fall 2007)

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‘Play in the Joints Between the Religion Clauses’ and Other Supreme Court Catachreses, 34 HOFSTRA LAW REVIEW 1331 (2006)

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Governance and the Religion Question: Voluntaryism, Disestablishment, and America's Church-State Proposition, 48 JOURNAL OF CHURCH AND STATE 303 (2006)

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Dissent and Disestablishment: The Church/State Settlement of the New American Republic, 2004 BRIGHAM YOUNG UNIVERSITY LAW REVIEW 1385 (2004)

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The Establishment Clause as a Structural Restraint: Validations and Ramifications, 18 JOURNAL OF LAW & POLITICS 445 (2002)

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Statement Before the United States House of Representatives Concerning Charitable Choice and the Community Solutions Act (symposium on Poverty and the Law), 16 NOTRE DAME JOURNAL OF LAW ETHICS & PUBLIC POLICY 567 (2002)

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Religion and the First Amendment: Some Causes of the Recent Confusion (Institute of Bill of Rights Law Symposium: Religion in the Public Square), 42 WILLIAM AND MARY LAW REVIEW 883 (2001)

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Differentiating the Free Exercise and Establishment Clauses, 42 JOURNAL OF CHURCH AND STATE 311 (2000)

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Charitable Choice and the Critics, 57 NYU ANNUAL SURVEY OF AMERICAN LAW 17 (2000)

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Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause, 13 NOTRE DAME JOURNAL OF LAW ETHICS & PUBLIC POLICY 285 (1999)

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The Establishment Clause as a Structural Restraint on Governmental Power, 84 IOWA LAW REVIEW 1 (1998)

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A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers, 46 EMORY LAW JOURNAL 1 (1997)

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A Restatement of the Supreme Court’s Law of Religious Freedom: Coherence, Conflict or Chaos?, 70 NOTRE DAME LAW REVIEW 581 (1995)

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Table of United States Supreme Court Decisions Relating to Religious Liberty 1789-1994, 10 JOURNAL OF LAW & RELIGION 573 (1993/1994)

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1993 Survey of Trends and Developments on Religious Liberty in the Courts, 10 JOURNAL OF LAW & RELIGION 543 (1993/1994)

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Government Regulation of Religiously Based Social Services: The First Amendment Considerations, 19 HASTINGS CONSTITUTIONAL LAW QUARTERLY 343 (1992)

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The Lemon Test: Should It Be Retained, Reformulated or Rejected?, 4 NOTRE DAME JOURNAL OF LAW ETHICS & PUBLIC POLICY 513 (1990)

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A Topology of Church-State Relations in Current American Thought, 8 JOURNAL OF FAITH AND MISSION 3 (1990)

Book Review: First Freedom: Religion and the Bill of Rights (James Wood ed., 1990), 8 JOURNAL OF LAW & RELIGION 651 (1990)

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1987 Survey of Trends and Developments on Religious Liberty in the Courts, 6 JOURNAL OF LAW AND RELIGION 145 (1988)

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Five Views of Church-State Relations in Contemporary American Thought, 1986 BRIGHAM YOUNG UNIVERSITY LAW REVIEW 371 (1986).

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1986 Survey of Trends and Developments in Religious Liberty in the Courts, 4 JOURNAL OF LAW AND RELIGION 431 (1986)

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1985 Survey of Trends and Developments on Religious Liberty in the Courts, 4 JOURNAL OF LAW AND RELIGION 211 (1986)

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Tort Claims against Churches and Ecclesiastical Officers: The First Amendment Considerations, 89 WEST VIRGINIA LAW REVIEW 1 (1986)

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Use of Government Funding and Taxing Power to Regulate Schools with Kline Capps, 14 JOURNAL OF LAW AND EDUCATION 553 (1985)

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Toward a General Theory of Church-State Relations and the First Amendment, 4 PUBLIC LAW FORUM 325 (1985)

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Book Review: The Naked Public Square: Religion and Democracy in America (R. J. Neuhaus), 50 MISSOURI LAW REVIEW 201 (1985)

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Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 WASHINGTON AND LEE LAW REVIEW 347 (1984)

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Religion and a Neutral State: Imperative or Impossibility?, 15 CUMBERLAND LAW REVIEW 67 (1984)

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State Regulation of Social Services Ministries of Religious Organizations, 16 VALPARAISO LAW REVIEW 1 (1981)

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Book Chapters/Collected Works

Religion During the American Revolution and the Early Republic, in LAW AND RELIGION, (ed.Silvio Ferrari, Ashgate Publishing, 2013)

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The First Federal Congress and the Formation of the Establishment Clause of the First Amendment, in NO ESTABLISHMENT OF RELIGION: AMERICA'S ORIGINAL CONTRIBUTION TO RELIGIOUS LIBERTY, (ed.T. Jeremy Gunn and John Witte, Oxford University Press, 2012)

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Appendix: Charitable Choice and the Critics, in RELIGIOUS ORGANIZATIONS IN THE UNITED STATES, A STUDY OF IDENTITY, LIBERTY, AND THE LAW, (ed. James A. Serritella, Carolina Academic Press, 2006)

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Regulation of Religious Organizations Via Governmental Financial Assistance, in RELIGIOUS ORGANIZATIONS IN THE UNITED STATES, A STUDY OF IDENTITY, LIBERTY, AND THE LAW, (ed. James A. Serritella, Carolina Academic Press, 2006)

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The American System of Church-State Relations (And Its Bearing on Church Autonomy), in CHURCH AUTONOMY: A COMPARATIVE SURVEY (ed. Gerhard Robbers, Peter Lang, 2001)

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The Neutral Treatment of Religion and Faith-Based Social Service Providers: Charitable Choice and Its Critics, in WELFARE REFORM AND FAITH-BASED ORGANIZATIONS (eds. Derek Davis and Barry Hankins, J.M. Dawson Institute of Church-State Studies, Baylor University, 1999)

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Equal Treatment: Its Constitutional Status, in EQUAL TREATMENT OF RELIGION IN A PLURALISTIC SOCIETY (eds. Stephen V. Monsma and J. Christopher Soper, Eerdmans Pub. Co. 1998)

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Reflections on Christians in the Political Process, in THE ROLE OF RELIGION IN POLITICS AND SOCIETY 115-130, (eds. Harold Heie, A. James Rudin, and Marvin R. Wilson, Center For Christian Studies at Gordon College and Interreligious Affairs Department of the American Jewish Committee 1998)

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American Religion and Politics: Do We Really Have a Shared Vision?, in THE ROLE OF RELIGION IN SOCIETY 30, (American Jewish Committee 1998)

A Typology of Church-State Relations in Current American Thought, in RELIGION, PUBLIC LIFE, AND THE AMERICAN POLITY, (ed. Luis E. Lugo, U. of Tenn. Press, 1994)

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Ecclesiastical Disciplinary Law and the Law of Church Employees., EVANGELISCHES KIRCHENLEXIKON (ed. Erwin Fahlbusch, Vanderhoeck & Ruprecht, 1990)

The Establishment Clause as a Limit on Governmental Regulation of Religious Schools, in PUBLIC VALUES, PRIVATE SCHOOLS (ed. N. Devins, Stanford University series of Falmar Press 1989)

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The Establishment Clause: Assuring the Independence of Churches and a Neutral State, in GOVERNMENT INTERVENTION IN RELIGIOUS AFFAIRS (ed. D. Kelley, Pilgrim Press, 1986)

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Books

The Freedom of Faith-Based Organizations to Staff On a Religious Basis with Stanley W. Carlson-Thies & Ronald J. Sider with Stanley W. Carlson, (Center For Public Justice 2004)

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A Guide To Charitable Choice: The Rules of Section 104 of the 1996 Federal Welfare Law Governing State Cooperation With Faith-Based Social-Service Providers, (Center for Public Justice and the Christian Legal Society 1997)

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The Regulation Of Religious Organizations as Recipients of Governmental Financial Assistance, (Center for Public Justice 1996)

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Other Publications

A Post-Obergefell America: Is a Season of Legal and Civic Strife Inevitable?, 11 CHRISTIAN LAWYER 3 (2015)

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Third-Party Burdens, Congressional Accommodations for Religion, and the Establishment Clause, Hearing on Oversight of the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act, before the Judiciary Committee of the U.S. House of Representatives, Subcommittee on the Constitution and Civil Justice (February 13, 2015)

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Differences: Real and Rhetorical: Responding to Non-Discrimination Executive Order and Religious Freedom, Cornerstone: Blog of the Berkley Center for Religion, Peace & World Affairs (July 21, 2014)

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Freedom of the Church: Responding to Shifting Applicability: A History of Judicial Approaches to Free Exercise, Cornerstone: Blog of the Berkley Center for Religion, Peace & World Affairs (June 5, 2014)

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Watch What You Pray For, www.christianitytoday.com (May 2014)

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Town of Greece Symposium: Can Government Actively Favor a Religious Practice?, SCOTUSBLOG (Sep. 23, 2013)

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Avoiding Misguided Metaphors: Do the Free Exercise and Establishment Clauses Clash?, 102 LIBERTY MAGAZINE 2 (May/June 2007)

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Church-State Relations in America: What's At Stake and What's Not?, 100 LIBERTY MAGAZINE 3 (May/June 2005)

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On Rights and Restraints, 94 LIBERTY MAGAZINE 22-29 (March/April 1999)

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Pluralism Without a Center? The Emergence of Many Cultures in American Society and Why It's Good, 90 LIBERTY MAGAZINE 20 (May/June 1995)

The Bicentennial of the U.S. Bill of Rights, 32 DECISION MAGAZINE 16 (January 1991)

A Case for Disestablishment of the Church of England, 45 REPORT FROM THE CAPITAL 6 (March 1990)

Concepts of Church Autonomy in the First Amendment, PROCEEDINGS OF THE ABA NATIONAL INSTITUTE ON TORT AND RELIGION (May 1989).

Religious Beliefs, Human Rights and the Moral Foundation of Western Democracy, 1986 PAINE LECTURES IN RELIGION (C. Esbeck ed., 1986)

Current Practice Under 42 U.S.C. Sections 1981 and 1982, (w/ M. Shipley), 12 BARRISTER MAGAZINE 31 (ABA Spring 1985)

Current Practice Under 42 U.S.C. Sections 1985 and 1986, (w/ L. Schumaker), 11 BARRISTER MAGAZINE 34 (ABA Fall 1984)

Current Practice Under 42 U.S.C. Section 1983, 10 BARRISTER MAGAZINE 31 (ABA Fall 1983)

The Limits on Law in Directing Moral Choice, 34 ETERNITY MAGAZINE 64 (September 1983), reprinted in 4 CLS QUARTERLY 26 (Fall 1983)

Back to Basics: God, Caesar and the American Experience, 36 CHURCH & STATE MAGAZINE 20 (April 1983)

Professional Journals

A Religious Organization’s Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment, 13 ENGAGE 163 (2012)

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Why the Supreme Court Has Fashioned Rules of Standing Unique to the Establishment Clause, 10 ENGAGE 83 (2009)

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The Application of RFRA to Override Employment Nondiscrimination Clauses Embedded in Federal Social Services Programs, 9 ENGAGE 140 (2008)

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Concepts of Church Autonomy in the First Amendment, 13 JURIS DOCTOR 72 (1990)

A Topology of Church-State Relations in American Thought, 15 RELIGION AND PUBLIC EDUCATION 43 (Winter 1988) (reprint)

A Primer on Religious Liberty and the First Amendment, 3 CLS QUARTERLY 1A (1982)

Working Papers

Third-Party Harms, Congressional Statutes Accommodating Religion, and the Establishment Clause, UNIVERSITY OF MISSOURI SCHOOL OF LAW LEGAL STUDIES RESEARCH PAPER no.2015-10

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