Digital Commons Network^™

Step Down, Justice Melvin, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Justice’S Suspension Is Dubious, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith

Steven D. Smith

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. …

¿Puede La Fe Aportar Algo Al Derecho? La Respuesta De La Teología Jurídica, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

El artículo analiza la posibilidad de que la fe aporte contenidos a la ciencia del Derecho y al ordenamiento jurídico. La perspectiva no es histórica, sino jurídica y teológica. Consta de tres partes: (i) el planteamiento del problema del aporte de la fe; (ii) la delimitación de la teología jurídica, que es la ciencia llamada a resolver el problema; y, (iii) la respuesta al problema. En el fondo el análisis procura mostrar cómo la fe puede ser “fuente de derecho”. Termina señalando el alcance y los límites de esta fuente en el derecho sobre las cosas naturales y sobrenaturales.

It’S Time To Reconsider Graduation Prayer In Public High Schools, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine

Samuel J. Levine

In recent years, the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief. While the Justices have articulated valid concerns concerning these cases, courts should not allow these concerns to deter them from making decisions vital to the effective adjudication of Free Exercise and Establishment Clause cases. In fact, it appears that as a result of the Court's increasing refusal to consider carefully the religious questions central to many cases, the Court often tends to group together religious claims and practices, regardless of the relative …

Islam, Judaism And The Murders At Itamar, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

What About The Morality Of Torture, Results Aside?, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Discrimination Cases Of The 2002 Term (Symposium: The Fifteenth Annual Supreme Court Review), Eileen Kaufman

Eileen Kaufman

No abstract provided.

Further Reflections On The Role Of Religion In Lawyering And In Life, Samuel J. Levine

Samuel J. Levine

No abstract provided.

Further Reflections On The Role Of Religion In Lawyering And In Life, Samuel J. Levine

Samuel J. Levine

No abstract provided.

The Incredible Shrinking Free Exercise Clause, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Funding Stem Cell Research: The Convergence Of Science, Religion & Politics In The Formation Of Public Health Policy, Edward A. Fallone

Edward A Fallone

The controversy over the funding of stem cell research by the federal government is used as a case study for examining how policy choices are made in the field of public bioethics. This article examines the manner in which the decision to fund stem cell research has been influenced by the convergence of evolving scientific knowledge, conflicting religious values, and the role of elected officials in a representative democracy. The article begins by reviewing the current state of scientific knowledge concerning adult stem cells, embryonic stem cells, induced pluripotent stem cells, and the process of direct cell re-programming. Because each …

Nonpublic Reasons And Political Paradigm Change, Ian C. Bartrum

Ian C Bartrum

This article was a contribution to the 2010 Religious Legal Theory symposium held at St. John's Law School.

John Rawls famously argued that citizens in a just democracy have a moral duty to ensure that “the principles and policies they advocate and vote for can be supported by the political values of public reason.” This so-called “duty of civility” obligates us to cast our votes on “constitutional questions and matters of basic justice” for reasons that we can explain in terms of the public good and the “ideals and principles expressed by society’s conception of political justice.” Rawls contrasts these …

The Myth Of Religious Freedom: The Implications Of The State Controlling Religious Expression In The Name Of Public Order, David N. Wagner

David N. Wagner

The state prevents certain religious expression in the name of public order. This article explores the state's role in providing an environment for persons to realize the fullness of their humanity as creatures made in the image and likeness of God.

Education As A Counterterrorism Tool And The Curious Case Of The Texas School Book Resolution, Diane Webber

Diane Webber

As a case study, this paper reviews a resolution passed by the Texas State Board of Education on September 24, 2010. The resolution rejects certain Social Studies texts that contain what the Board determined were pro-Islamic/anti-Christian distortions…The resolution is itself doing what it complains about – it is showing “chronic partiality to one of the world’s great religions and animus against another.”…At a time when “reciprocal negative perceptions between the Western and Muslim worlds continue to escalate”, it is essential to acknowledge the important role of education to promote tolerance… The knowledge gained from religious tolerance education can then be …

Phony Originalism And The Establishment Clause, Andrew M. Koppelman

Faculty Working Papers

The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.

The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

Scholarly Articles

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in …

An Essay Concerning Judicial Resignation And Non-Cooperation In The Presence Of Evil, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Judges And Religious-Based Reasoning, David Blaikie, Diana Ginn

Articles, Book Chapters, & Popular Press

Is it ever acceptable for a judge in a secular liberal democracy to rely on, and explicitly refer to, religious-based reasoning in reaching a decision? While it is unlikely that many Canadian judges will be seized with the desire to include religious-based reasoning in their judgments, we raise this issue because it allows us to examine the appropriate role of religious-based discourse in a challenging context, where arguments about unconstitutionality are strongest. In a previous article, we concluded that there are no ethical impediments to citizens using such discourse in discussing public affairs. We argued that it is no less …

Salazar V. Buono: A Missed Opportunity To Clarify The Reasonable Observer Test, Sumahn Das

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Education As A Counterterrorism Tool And The Curious Case Of The Texas School Book Resolution, Diane Webber

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Religious Legal Theory Symposium: Introduction, Mark L. Movsesian

Faculty Publications

On November 5, 2010, the St. John's Center for Law and Religion proudly hosted the annual Religious Legal Theory Conference. The event, now in its second year and to be shared among different universities, brought together scholars from around the world to discuss this year's theme, "Religion in Law, Law in Religion." The Center chose this theme in order to include papers on traditional church-state issues—“Religion in Law"—as well as papers addressing the role that law plays in various religious traditions—“Law in Religion." In addition, because contemporary law and religion scholarship has moved beyond strictly domestic-law questions, and takes an …

Child, Please – Stop The Anti-Queer School Bullycides: A Modest Proposal To Hoist Social Conservatives By Their Own “God, Guns, And Gays” Petard, David Groshoff

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Journal Articles

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law …

The Siren Song Of History: Originalism And The Religion Clauses, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

It is hard to foresee much happiness in the lot of those seeking the original meaning of the Religion Clauses. We may acknowledge the opacity of the historical record, the variety of viewpoints held by founders forgotten and non-forgotten, the humanness of the founders who did not always practice what they preached, even the basic indeterminancy of language; still, we are seduced by the siren song of interpretive certainty. But the search for greater clarity is not without its payoff. As the three books under review here illustrate, the more we look for answers in the historical record, the more …