Digital Commons Network^™

Free Exercise Of Abortion, Elizabeth Sepper

BYU Law Review

For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they …

The Rise And Fall Of Human Dignity, Nicholas Aroney

BYU Law Review

No abstract provided.

Christianity And Antitrust, Kenneth G. Elzinga, Daniel Crane

Book Chapters

The purpose of this chapter is to consider whether the Christian faith has a nexus with the institution of antitrust. It turns out it doesn’t – and it does. For example, Christianity cannot explain why the Herfindahl–Hirschman Index is superior to the four-firm concentration ratio as a measure of industry concentration. Economics can. On the other hand, economics cannot explain why the per se rule against price-fixing is morally appropriate. The Bible can.

Jesus Came "Not To Abolish The Law But To Fulfill It": The Sermon On The Mount And Its Implications For Contemporary Law, David Vandrunen

Pepperdine Law Review

This Article interprets Matthew 5:17–48 and argues that, because Jesus came not to abolish but to fulfill the law and the prophets, the Old Testament law takes on a new form for New Testament Christians. The law of God has been refracted through the ministry of Christ. While Matthew 5 does not address contemporary human law directly, its teaching does have radical implications for it. These implications flow particularly from the fact that Matthew 5 marks a decisive shift from the Mosaic theocracy to the worldwide new-covenant church that has no civil jurisdiction.

The Beatitudes, Lawyers, And Bob Cochran, Amelia J. Uelmen

Pepperdine Law Review

Written on the occasion of a celebration of the work and scholarship of Bob Cochran, this reflection draws on his scholarship and also on his teaching and work to build vibrant communities of commitment, service, and scholarship at the intersection of religion, law, and professional life. Working with the text of the Beatitudes from the Gospel of Matthew, the essay highlights the value of how Bob Cochran has aimed not only to “do good,” but also to “be good” in a world and in a profession where it seems increasingly difficult to do so. His legacy offers a powerful inspiration …

"Turn It And Turn It, For All Is In It": Reflections On Chaim Saiman's Halakhah:The Rabbinic Idea Of Law, Cathleen Kaveny

Villanova Law Review

No abstract provided.

Review Of Chaim Saiman's The Rabbinic Idea Of Law, Suzanne Last Stone

Villanova Law Review

No abstract provided.

Dialectics Of The Right To Freedom Of Religion Or Belief, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Church And State And Child Endangerment, Raymond C. O'Brien

Scholarly Articles

As media in the United States revealed the number of minors sexually abused by clergy, the gravity of the offenses, and the inability to prosecute the offenders, a second offense was revealed. Gradually it was illustrated that bishops and their diocesan administrators knew of credible sexual crimes against children committed by clergy and they responded by protecting offenders, ignoring victims, and knowingly reassigning credibly accused clergy to other placements where they could endanger additional minors. In response to these developments the United States Conference of Catholic Bishops published policies to protect children, enacted norms to be followed in each diocese, …

Now, I'M Liberal, But To A Degree: An Essay On Debating Religious Liberty And Discrimination, Francis J. Beckwith

Cleveland State Law Review

This essay is a critical analysis of the book authored by John Corvino, Sherif Girgis, and Ryan T. Anderson, Debating Religious Liberty and Discrimination. The book offers two contrary views on how best to think about some of the conflicts that have arisen over religious liberty and anti-discrimination laws, e.g., Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018). One position is defended by Corvino, and the other by Girgis and Anderson. After a brief discussion of the differing views of religious liberty throughout American history (including the American founding), this essay summarizes each …

John The Theologian: Towards Integrating Law And Religion, Gordon Butler

Intercultural Human Rights Law Review

Every dean leaves an impact on the law school they serve and its faculty. St. Thomas Law Dean Makdisi supported and encouraged Professor Siegfried Wiessner's effort in creating an LL.M. program in Intercultural Human Rights. While others will laud his many accomplishments as dean in the J.D. program, his impact on the religious heritage and Catholic mission of St. Thomas Law was greatest in the LL.M. program.

Islam And Religious Freedom: The Experience Of Religious Majorities And Minorities, Brett G. Scharffs

Notre Dame Law Review Reflection

It seems likely that change in Islam will be affected both by outside and internal sources, as was the case for the Catholic Church and its journey to Dignitatis Humanae. However, one thing the Catholic experience suggests is that meaningful and profound change does not simply come from outside pressures; it comes from authentic and sincere evaluation and interpretation by insiders of a religious tradition of that tradition itself. Thus, if Islam is going to come to embrace religious freedom as an important value, this will be the result, significantly if not primarily, of Muslims interpreting their own sacred …

Where Morality And The Law Coincide: How Legal Obligations Of Bystanders May Be Informed By The Social Teachings Of Pope Francis, Amelia J. Uelmen

Seattle University Law Review

Since the beginning of his pontificate, Pope Francis has offered to the world powerful signs of how we should aspire to treat each other as human beings, as brothers and sisters in the one human family. He has communicated his message and his teachings in myriad ways: through symbolic gestures; his presence and words at gatherings in our world’s most troubled places; brief messages, homilies and meditations; and official documents that continue the application of the principles of Catholic social teaching to contemporary social questions. What might these prophetic signs and statements mean for the dialogue between Catholic social thought …

The Equivalence Of Religion And Conscience, Lucien J. Dhooge

Notre Dame Journal of Law, Ethics & Public Policy

This Article examines issues posed by the equation of religious liberty with secular conscience, utilizing federal law and the law in those states which have adopted religious freedom restoration acts (RFRAs). The Article initially addresses the definition of religion through an examination of applicable literature and federal and state case law. The same approach is utilized to define conscience. The Article then examines similarities between the two concepts and the implications of their equivalence. The Article concludes that religion and conscience are moral equivalents that require equal legal treatment. However, equal treatment should proceed with caution in order to address …

The Legal Revolution Against The Place Of Religion: The Case Of Trinity Western University Law School, Barry W. Bussey

BYU Law Review

The special legal status of religion and religious freedom in liberal democracies has become an issue of controversy among legal academics and lawyers. There is a growing argument that religion is not special and that the law should be amended to reflect that fact. This Article argues that religion is special. It is special because of the historical, practical, and philosophical realities of liberal democracies. Religious freedom is a foundational principle that was instrumental in creating the modern liberal democratic state. To remove religion from its current legal station would be a revolution that would put liberal democracy in a …

Against Circumspection: Judges, Religious Symbols, And Signs Of Moral Independence, Benjamin Berger

Benjamin L. Berger

This chapter questions the interpretation of religious ­ signs and symbols— and the interpretive possibilities that emerge when we demand more from one another in thinking about such symbols— by ­ examining the question of judges and religious dress in the particular context of the judge’s role as wielding the coercive force of the state through the exercise of criminal punishment. I advance the argument that recent debates have proceeded on a misleadingly simplistic approach to understanding the meaning of signs of religious belonging and identity in this setting and that, with this, we miss an opportunity for a deeper …

The Vow Of Poverty And Its Civil Law Implications, Romaeus W. O'Brien, O. Carm.

The Catholic Lawyer

No abstract provided.

Against Circumspection: Judges, Religious Symbols, And Signs Of Moral Independence, Benjamin Berger

Articles & Book Chapters

This chapter questions the interpretation of religious ­ signs and symbols— and the interpretive possibilities that emerge when we demand more from one another in thinking about such symbols— by ­ examining the question of judges and religious dress in the particular context of the judge’s role as wielding the coercive force of the state through the exercise of criminal punishment. I advance the argument that recent debates have proceeded on a misleadingly simplistic approach to understanding the meaning of signs of religious belonging and identity in this setting and that, with this, we miss an opportunity for a deeper …

Islamic Legal Theory And The Legitimacy Of Secular Positive Law: Is Modern Religious Liberty Sufficient For The Islamic Legal Maqsad ('Ultimate Objective') Of Hifz Al-Din ('Preserving Religion')?, Andrew March, Mohamad Al-Hakim, Michael Giudice, François Tanguay-Renaud

François Tanguay-Renaud

Andrew F. March, Associate Professor of Political Science, Yale University, examines some treatments of the meaning and extension of the Islamic legal purpose (maqad) of protecting religion (hifz al-din), with an eye towards Islamic legal theorists’ explicit or implicit encounter with modern liberal and secularist understandings of what it means to “protect religion.”

Respondent: Mohamad Al-Hakim, York University, Philosophy.

Catholic Ideas About War: Why Does Carl Schmitt Reject Natural Law Justifications Of War?, G.J. Mcaleer

Touro Law Review

No abstract provided.

Implementing Religious Law In Modern Nation-States: Reflections From The Catholic Tradition, Patrick Brennan

Patrick McKinley Brennan

This paper originated as an invited contribution to a symposium on "Implementing Religious Law in Contemporary Nation-States: Definitions and Challenges," sponsored by the Robbins Collection, Berkeley Hall, Boalt Hall, U.C. Berkeley, February 2014. The symposium by design brought papers speaking variously from Christian, Jewish, and Muslim perspectives into conversation. My paper proposes that the Catholic tradition of reflection on human lawmaking, even in modern nation-states, must take as its starting point the God who rules His rational creatures through higher or eternal law, where the rational creature’s participation in that higher law is what is known as the natural law. …

Freedom Of Conscience As Religious And Moral Freedom, Michael J. Perry

Faculty Articles

In another essay being published contemporaneously with this one, I have explained that as the concept "human right" is understood both in the Universal Declaration of Human Rights and in all the various international human rights treaties that have followed in the Universal Declaration's wake, a right is a human right if the rationale for establishing and protecting the right-for example, as a treaty-based right-is, in part, that conduct that violates the right violates the imperative, articulated in Article i of the Universal Declaration, to "act towards all human beings in a spirit of brotherhood." Each of the human rights …

Religious Education And The Historical Method Of Constitution Interpretation - A Review Article, Robert Rodes

Robert Rodes

No abstract provided.

Can A Pluralistic Commonwealth Endure?, Brian M. Mccall

Brian M McCall

This article considers whether the American pluralist system can satisfy Cicero's definition of a commonwealth as a multitude united in a definition of law and justice. The analysis is based upon a review of Thaddeus Kozinski's book, The Problem or Religious Pluralism and Why Philosophers Can't Solve It. This book critiques the philosophy of John Rawls, Jacques Maritain and Alisdaire MacIntyre. The critique is based upon Cicero's definition of a commonwealth and the article concludes that a society which maintains a deep pluralism over the first principles of law and justice cannot survive as a commonwealth.

Subsidiarity In The Tradition Of Catholic Social Doctrine, Patrick Mckinley Brennan

Working Paper Series

This chapter is an invited contribution to the first English-language comparative study of subsidiarity, M. Evans and A. Zimmerman (eds.), Subsidiarity in Comparative Perspective (forthcoming Springer, 2013). The concept of subsidiarity does work in many and varied legal contexts today, but the concept originated in Catholic social doctrine. The Catholic understanding of subsidiarity (or subsidiary function) is the subject of this chapter. Subsidiarity is often described as a norm calling for the devolution of power or for performing social functions at the lowest possible level. In Catholic social doctrine, it is neither. Subsidiarity is the fixed and immovable ontological principle …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien

University of Arkansas at Little Rock Law Review

Over time, the definition of family has shifted from being premised upon kinship to legal status. In modern times, family structure is based more upon function than form, seeking to derive its status as a family from the subjective intent of its members to act as a family. Many early settlers in the colonial territories came to America to escape religious persecution and practice their own religion.

For that reason, biblical language and religious doctrine formed the basis for common law, statutes, and practice. Today, there remains the notion among many Americans that the law represents a divine plan and …

Love, Truth And The Economy: A Reflection On Benedict Xvi's Caritas In Veritate, John M. Breen

John M. Breen

No abstract provided.

After Gender The Destruction Of Man? The Vatican’S Nightmare Vision Of The “Gender Agenda” For Law, Mary Anne Case

Pace Law Review

No abstract provided.

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien

Scholarly Articles

This Article argues that challenges made to family law structures have provoked a significant reaction from persons and religious organizations advocating a distinctive worldview based on religious and historical values. Additionally, as family law changes from being a product of a religioushistorical worldview to being a product of private-ordering, the religious liberty of worldview adherents has been challenged. The struggle is apparent in the debates during the 2012 presidential election and is evidenced in government mandates that include, among other requirements, that employersincluding religious organizations-provide insurance coverage for employees that include contraception. Although many aspects of family law have been …

In Light Of Oklahoma Sq 755: How Islamic Law Antecedes In Solving Minorities’ Personal Law Issues?, Mansour A. Alhaidary

Cornell Law School Inter-University Graduate Student Conference Papers

In November 2010, a proposal was passed to amend Section 1 of Article VII of the Oklahoma State Constitution to prevent considering Sharia Law in making judicial decisions as well as international law. This amendment is being challenged in the court by Muslims and a temporary restraining order has been granted. In this paper, I will show, in contrast to what Oklahoma legislators wanted to enact, how Islamic law of 1400 years ago provided freedom of application of personal law for religious minorities more than any other legal system. Although other legal systems provide one type of freedom or another, …