Tag: Establishment Clause

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is real danger of violating the Free Exercise Clause. This Note seeks to answer the question: Does the government’s role in approving and enforcing trademark rights in intra-church disputes violate the Establishment and Free Exercise Clauses of the First Amendment?

Part II of this Note provides an overview of Supreme Court church property jurisprudence and describes the evolution of the neutral principles approach. This Note primarily focuses on property disputes between hierarchical churches, as their governing structure leaves them most vulnerable to Free Exercise implications. Part III outlines how an entity, secular or religious, registers a trademark with the U.S. Patent and Trademark Office (USPTO). The section details infringement actions and provides examples of registered church trademarks. Part IV concerns the constitutional implications of church trademark adjudication, specifically through the lens of the Establishment Clause and the Free Exercise Clause. Part IV.A concludes that the USPTO’s registering of church trademarks does not violate the Establishment Clause. Part IV.B analyzes Free Exercise implications concerning the adjudication of trademark infringement suits. Because of the neutral principles approach and the inherently ecclesiastical nature of church trademarks, Part IV.B concludes that current court action violates the Free Exercise Clause. Part V suggests that courts should uniformly apply the neutral principles approach to real and intellectual property disputes alike. This section theorizes that such an approach would prevent future Free Exercise violations.

The Supreme Court has long misconstrued the Establishment Clause. This misinterpretation in turn has led the Court mistakenly to interpose itself into the realm of legislative prayer, an incursion the Founders never intended. This Response to Mary Nobles Hancock’s Note, after noting the complexity of the issues she presents, briefly comments on Ms. Hancock’s analysis, which focuses on how current Supreme Court doctrine should be applied to legislative prayer. Part III ranges more broadly.

This Response to Mary Nobles Hancock’s Note explains Christian nationalism, and argues that government sponsored Christian prayers reflect and exacerbate Christian nationalism. It further contends that to help curb Christian nationalism and its ill effects, legislative prayers ought to cease entirely. Such a result is most in keeping with the Establishment Clause goal of avoiding a caste system based on religious belief.