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Constitutional Law

Selected Works

2018

Establishment Clause

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When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand Dec 2017

When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand

Michael A Helfand

In this chapter, I explore how judges—and, more generally, U.S. courts—deal with legal disputes when they must consider not only laws and facts, but also religion, or maybe even more precisely, theology. Indeed, in a wide range of circumstances, judges are confronted with cases where the outcome in some way or another requires them to issue a decision that is predicated, to varying to degrees, on a theological question upon which there is some debate. While in American law the ostensibly simple answer to this question is simply that the Constitution prohibits courts from adjudicating religious questions ...


Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand Dec 2017

Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand

Michael A Helfand

One of the recent fault lines over religious liberty is the scope of protections afforded religiously motivated institutions and corporations. Courts and scholars all seem to agree that such religious institutions deserve some degree of protection. But there remains significant debate over the principles that should guide judicial decisions addressing the circumstances in which religiously motivated institutions should, and in which circumstances they should not, receive the law’s protection.

In this Article, I expound, and defend, my proposed “implied consent” framework for addressing religious institutional claims. Such a framework grounds the authority of religious institutions not in a degree ...