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Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan
Doma: An Unconstitutional Establishment Of Fundamentalist Christianity, James M. Donovan
James M. Donovan
This Article scrutinizes the constitutionality of the intent of the Defense of Marriage Act [DOMA]. According to the text of the Act, DOMA's purposes are "to define and protect the institution of marriage," where marriage is defined to exclude same-sex partners. To be constitutionally valid under the Establishment Clause, this notion that heterosexual marriage requires "protection" from gay and lesbian persons must spring from a secular and not religious source. This Article posits that DOMA has crossed this forbidden line between the secular and the religious. DOMA, motivated and supported by fundamentalist Christian ideology, and lacking any genuine secular goals …
Habermas's Discourse Theory Of Law And The Relationship Between Law And Religion, Mark C. Modak-Truran
Habermas's Discourse Theory Of Law And The Relationship Between Law And Religion, Mark C. Modak-Truran
Mark C Modak-Truran
Jürgen Habermas's discourse theory of law poignantly sets forth the modern legitimation crisis of law. Relying on Max Weber's social theory and sociology of law, he argues that the rationalization of society has eliminated religious and metaphysical justifications for law and has differentiated law from politics and morality. Law must now be legitimated based on its legality. The legal positivists (including Weber, H.L.A. Hart, John Austin) and John Finnis attempt to define legality merely in terms of procedural requirements. Habermas, however, demonstrates the circularity of this definition of legality. Legal positivists fail to legitimate the procedural requirements that are claimed …