BOSTON COLLEGE
Boston College Law Review

Student
Publications

Volume 43 2002 Number 5

[Pages 1009-1034]
RACE RELATIONS AND MODERN CHURCH-STATE RELATIONS
Thomas C. Berg*

Abstract:  Over the last fifty years, the evolution of church-state jurisprudence in the Supreme Court of the United States has closely paralleled developments in race relations in the country. This Article examines how developments in race relations may have facilitated both the rise of strict church-state separationism in the 1960s and 1970s and its decline in the last twenty years, tracing the course of church-state relations not only in the Court itself, but in the broader society. The Article specifically argues that the strict separationism of the 1960s and early 1970s partially stemmed from a concern for religious minority rights inspired largely by the struggle for equal rights for blacks. In turn, this Article argues that strict separationism has declined in the last twenty years as secular-oriented theologies of social activism have faced serious challenges and lost ground, and as developments in race relations have aided the rise of governmental aid to religious educational institutions.

[Pages 1035-1070]
MITCHELL V. HELMS AND THE MODERN CULTURAL ASSAULT ON THE SEPARATION OF CHURCH AND STATE
Derek H. Davis*

Abstract:  This Article suggests that the Mitchell v. Helms decision, and the course on which its sets us—offering government aid to religion as a social good—is a blunder that will have serious adverse consequences for the vital role that religion plays in American society. The intention of aiding religion through the beneficent emasculation of traditional tests of government establishment observed in Helms is just the latest instance of our recurrent attempts to kill American religion with kindness. This process is spurred on by a perceived national crisis following tragedies like those in Paducah, Kentucky and Littleton, Colorado. This Article suggests that while the United States has largely resisted the temptation to alter the inherent wisdom of the system, recent political and judicial changes make the First Amendment and American religious groups that depend on it more vulnerable.

[Pages 1071-1110]
A TWO-TRACK THEORY OF THE ESTABLISHMENT CLAUSE
Frederick Mark Gedicks*

Abstract:  Establishment Clause doctrine has long been informed by two mutually antagonistic values: the separation of church and state, and government neutrality with respect to religion. This puzzle of conflicting values mirrors that of Speech Clause doctrine, which has operated for decades with a value conflict between content-based and content-neutral regulation under the so-called “two-track” theory of the Speech Clause. This Article compares Establishment Clause doctrine with the two-track Speech Clause in order to illuminate how separation and neutrality might coexist. Just as Speech Clause doctrine provides an absolute minimum of constitutional protection for expression against even content-neutral regulation, so also Establishment Clause doctrine provides for an absolute minimum of church-state separation against even religiously neutral government action. As a result, neutrality has not totally eclipsed separation, which is the more fundamental Establishment Clause value.

[Pages 1111-1138]
OF (UN)EQUAL JURISPRUDENTIAL PEDIGREE: RECTIFYING THE IMBALANCE BETWEEN NEUTRALITY AND SEPARATIONISM
Steven K. Green*

Abstract:  The Supreme Court’s recent Establishment Clause decisions have framed neutrality and separationism as competing principles. A plurality of the Court views evenhanded neutrality as the superior principle over separationism and the controlling model for Religion Clause adjudication generally. A bare majority insists that the two principles are of equal jurisprudential pedigree. So framed, neutrality and separationism have been placed on an apparent collision course, forcing Supreme Court justices as well as church-state scholars to choose between one principle or the other. This Article proposes an alternative view of the relationship between separationism and neutrality. When viewed within its proper role and function, neutrality serves as an adjunct to separationism, and can only contribute a value consistent with the history and purpose of the religion clauses by existing as a subordinate principle.

[Pages 1139-1176]
HISTORIC PRESERVATION GRANTS TO HOUSES OF WORSHIP: A CASE STUDY IN THE SURVIVAL OF SEPARATIONISM†
Ira C. Lupu* Robert W. Tuttle**

Abstract:  Many states have historic preservation regulations that, as applied to properties owned by religious entities, have been challenged on free exercise grounds. Historic preservation programs, however, also include government grants for preservation efforts, and no court has yet been asked to rule on the permissibility of such grants. This Article analyzes the existing Supreme Court precedent on state financial support for the construction or preservation of places of worship or religious teaching. After briefly reviewing the movement from Separationism to Neutralism, this Article collects and appraises materials on historic preservation, which reveal a remarkable degree of disparity in preservation policies, as various levels of government struggle with changes in the relevant law. This Article concludes by invoking a principle of Religion Clause symmetry—what the government may regulate it may also subsidize—and by suggesting that the religion-specific line between permissible and impermissible subsidy (and regulation) should be drawn between the exteriors and interiors of houses of worship.

[Pages 1177-1202]
DOMAIN NAME DISPUTE RESOLUTION IN U.S. COURTS: SHOULD ICANN BE GIVEN DEFERENCE?
Katherine Meyers

Abstract:  Established in 1998, the Internet Corporation for Assigned Names and Numbers (ICANN) is a private, non-profit corporation that administers the Internet domain name system. Through its Uniform Dispute Resolution Policy (UDRP), ICANN has also become an important vehicle for resolving domain name disputes that result from “cybersquatting.” The UDRP requires that parties to a domain name dispute submit to arbitration that conforms to ICANN rules. Although the parties maintain the right to seek judicial review of UDRP decisions, however, the level of deference that courts should grant those decisions remains unclear. To address this issue, this Note reviews the technological and legal history of the domain name system. This Note also examines ICANN’s origins, purposes, and structure, comparing them to those of federal administrative agencies. In doing so, this Note concludes that courts reviewing UDRP decisions should grant ICANN the same deference granted to federal agencies.

[Pages 1203-1236]
WHEN BUSINESS DECISIONS OF A CLIENT CREATE A CURRENT CLIENT CONFLICT OF INTEREST: IMPLICATIONS IN A COMPLEX ETHICAL LANDSCAPE
Jessica Taylor O'Mary

Abstract:  Lawyers have an ethical duty to be loyal to their clients. Conflict of interest questions involving loyalty are increasingly at issue in the modern climate of mergers and acquisitions. When there is a traditional client conflict the courts favor disqualification, finding the risk to loyalty values too extreme. Yet, when there is a corporate affiliate situation, or when the conflict is created by client business decisions and not the law firm, the balance may and should be shifted. This Note argues that courts should follow the flexible, practical, balancing of facts and circumstances approach instead of a strict per se rule. This balancing of facts and circumstances must consider all facts that implicate loyalty, including the law firm’s fault in creating the conflict. This Note concludes that a more flexible balancing approach, which includes whether the law firm is at fault in creating the conflict, adequately protects loyalty values while preventing the misuse of disqualification motions as a litigation tactic.