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Articles 1 - 23 of 23
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The Need For A Law Of Church And Market, Nathan B. Oman
The Need For A Law Of Church And Market, Nathan B. Oman
Nathan B. Oman
This Essay uses Helfand and Richman’s fine article to raise the question of the law of church and market. In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought for the …
God And The Executioner: The Influence Of Western Religion On The Use Of The Death Penalty, Davison M. Douglas
God And The Executioner: The Influence Of Western Religion On The Use Of The Death Penalty, Davison M. Douglas
Davison M. Douglas
In this Essay, Professor Douglas conducts an historical review of religious attitudes toward capital punishment and the influence of those attitudes on the state's use of the death penalty. He surveys the Christian Church's strong support for capital punishment throughout most of its history, along with recent expressions of opposition from many Protestant, Catholic, and Jewish groups. Despite this recent abolitionist sentiment from an array of religious institutions, Professor Douglas notes a divergence of opinion between the "pulpit and the pew" as the laity continues to support the death penalty in large numbers. Professor Douglas accounts for this divergence by …
Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson
Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson
Eric Alan Isaacson
Recent discussions about the threat that same-sex couples hypothetically pose to the religious freedom of Americans whose religions traditions frown upon same-sex unions have largely overlooked the possibility that same-sex couples might have their own religious-liberty interest in being able to marry. The General Synod of the United Church of Christ brought the issue to the fore with an April 2014 lawsuit challenging North Carolina laws barring same-sex marriages. Authored by a lawyer who represented the California Council of Churches and other religions organizations as amici curiae in recent marriage-equality litigation, this article argues that although marriage is a secular …
Seeing And Not Believing: Concern For Visual Culture In The Humanist, Rick Clifton Moore
Seeing And Not Believing: Concern For Visual Culture In The Humanist, Rick Clifton Moore
Rick Clifton Moore
A recent study of a magazine distributed by a powerful conservative Christian group determined the organization showed strong concern for “visual culture.” The publication directed its readers on how to understand the seen world. The present study analyzes a periodical of an avowedly secular group to understand how they might manifest similar or different concerns. On the whole, the content of the magazine called The Humanist appears to indicate that visual culture is as important to agnostics as it is to theists.
De-Gendering The Church Wedding: An Analysis Of The United Church Of Christ Marriage Rite For Persons Of The Same Sex In Light Of Catholic Teaching, Daniel Avila
Daniel Avila
An analysis pursuant to Catholic teaching of the United Church of Christ wedding ceremony revised to celebrate same-sex commitments as marriage.
Are Same-Sex Marriages Really A Threat To Religious Liberty?, Eric Alan Isaacson
Are Same-Sex Marriages Really A Threat To Religious Liberty?, Eric Alan Isaacson
Eric Alan Isaacson
Some have contended that same-sex couples' marriages pose a grave danger to the religious liberty of social conservatives whose faith traditions do not bless same-sex unions. Those who oppose recognizing same-sex couples' right to marry have even contended that their clergy and churches might be subject to hate-crime prosecutions and loss of tax-exempt status if same-sex couples may lawfully marriage. This article seeks to answer those objections, pointing out that many limitations on religious marriages -- such as Roman Catholic doctrine barring remarriage by those who are civilly divorced -- parallel religious rules similarly limiting or withholding recognition from same-sex …
Why Roe V. Wade Is Wrong, Richard Maloy
Making The Anomalous Even More Anomalous: On Hosanna-Tabor, The Ministerial Exception, And The Constitution, Mark Strasser
Making The Anomalous Even More Anomalous: On Hosanna-Tabor, The Ministerial Exception, And The Constitution, Mark Strasser
Mark Strasser
In Hosanna–Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court held that the First Amendment incorporates the ministerial exception and, further, found that the plaintiff fell within that exception and so could not press her claim. However, courts and commentators hoping for clarification of Religion Clauses jurisprudence more generally or even for a firm constitutional grounding of the ministerial exception may well be disappointed. The Court has raised more questions than it has answered, and has provided such little helpful guidance to the lower courts that Hosanna-Tabor is likely to lead to greater confusion in the …
The Ohio Constitution, Jefferson's Danbury Letter And Religion And Education, David W. Scott Dr.
The Ohio Constitution, Jefferson's Danbury Letter And Religion And Education, David W. Scott Dr.
David W Scott Dr.
Summary of article entitled “The Ohio Constitution of 1803, Jefferson’s Danbury Letter and Religion in Education” Never done before, this article brings together existing scholarship on the Ohio constitution of 1803, President Jefferson’s 1802 letter to the Danbury Baptists, and the education provision of the Northwest Ordinance. In so doing, it provides support for the conclusion that the section on religion of the Ohio constitution of 1803 represented a consensus in the early days of the Republic in regard to church and state. This Constitution was developed and supported by Jeffersonians at both the state and national level. It includes …
Secularization By Incorporation: Corporate Identity And The Religious Corporation, Bruce B. Jackson
Secularization By Incorporation: Corporate Identity And The Religious Corporation, Bruce B. Jackson
Bruce B Jackson
First Amendment Religion Clause doctrine applicable to a religious organization’s internal property dispute offers civil courts an option. Provided the controversy does not involve religious doctrine, a civil court may either defer to a religious organization’s governing body, or, resolve the matter itself by applying neutral principles of law. Application of the doctrine requires a civil court to treat religious corporations with a hierarchical form of government differently from those with a congregational form of government. For religious corporations that are hierarchically organized and governed, a normative Religion Clause analysis requires a civil court to defer to the decision of …
Toward A Meaning-Full Establishment Clause Neutrality, Bruce Ledewitz
Toward A Meaning-Full Establishment Clause Neutrality, Bruce Ledewitz
Bruce Ledewitz
Some form of government neutrality toward religion, in contrast to a more pro-religion stance or a turn toward nonjusticiability, is the only interpretation of the Establishment Clause that can potentially lead to a national consensus concerning the proper role of religion in American public life. But to achieve that goal, neutrality theory must acknowledge and engage the need for the expressions of deep meaning on public occasions and in the public square generally. Current neutrality doctrine promotes a silent and empty public square. This article proposes an interpretation of neutrality that would allow a symbol-rich, meaning-full public square without violating …
Sacred Disputes? On The Ministerial Exception And The Constitution, Mark Strasser
Sacred Disputes? On The Ministerial Exception And The Constitution, Mark Strasser
Mark Strasser
Federal courts have long been hearing church disputes, for example, concerning conflicting claims regarding the rightful possession and use of church property. However, there is no clear understanding concerning the contours of the constitutional limitations on the courts when one of the parties in interest is a religious organization. The conflicting jurisprudence may be clarified in the 2011-2012 term when the Court hears and decides Hosanna–Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, although there is reason to be pessimistic that this will happen. This article lays out the relevant jurisprudence as presented by the United States …
Life, Death & The God Complex: The Effectiveness Of Incorporating Religion-Based Arguments Into The Pro-Choice Perspective On Abortion, Stacy A. Scaldo
Life, Death & The God Complex: The Effectiveness Of Incorporating Religion-Based Arguments Into The Pro-Choice Perspective On Abortion, Stacy A. Scaldo
Stacy A Scaldo
While speaking on the issue of healthcare in August of 2009, President Barrack Obama told a meeting of Jewish rabbis, “We are God’s partners in matters of life and death.” While the President’s message was expressly targeting choices in healthcare and end of life decisions, the statement is representative of a shift in the public rhetoric reflective of all matters concerning life - including abortion. This, indeed, would be a remarkable change in both express policy and argument identification – one that appears to be a new weapon in the arsenal of those who identify themselves with the pro-choice movement. …
Funding Stem Cell Research: The Convergence Of Science, Religion & Politics In The Formation Of Public Health Policy, Edward A. Fallone
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 …
Dennis The Menace?: An Analysis Of Whether The Episcopal Church’S Dennis Canon Entitles The Church To An Exemption From Neutral Trust Law, Robert W. Humphrey Ii
Dennis The Menace?: An Analysis Of Whether The Episcopal Church’S Dennis Canon Entitles The Church To An Exemption From Neutral Trust Law, Robert W. Humphrey Ii
Robert W Humphrey II
In 1979, the Episcopal Church amended its canons to include a provision whereby all dioceses and local churches agreed to hold their property in trust for the national church. The Dennis Canon, as it is known, was a response to a schism within the church and an attempt by the church to preserve real property owned by local churches. Many courts construing the effect of the Dennis Canon have found it applies even when common law trust principles would provide otherwise. However, the Supreme Court of South Carolina recently refused to give effect to it, stating it has “no legal …
Secretly Falling In Love: America's Love Affair With Controlling The Hearts And Minds Of Public School Teachers, Kristin D. Shotwell
Secretly Falling In Love: America's Love Affair With Controlling The Hearts And Minds Of Public School Teachers, Kristin D. Shotwell
Kristin D Shotwell
The Protestant origins of American public schools, rigid gender roles, and obsolete legal doctrines combined to create a pubic identity for the female teacher as a chaste role model. This ideal of the teacher as an asexual, moral figure persists, and teachers continue to be discharged for private, legal behavior because it offends community morality. Drawing on work from religious, legal and educational historians, this article explores how Protestant values, coverture, male-only suffrage, and the spousal rape exemption led to the development of a stringent moral code for America’s earliest female teachers.
This article explores how teachers gained some due …
And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg
And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg
Matthew E Feinberg
The gay marriage ban: it is one of the most controversial issues in politics, in society, in religion, and in law today. In each venue, anything goes, everyone has an opinion, and the result is rarely consistent. The decisions may be different, but the claimants’ arguments are usually the same – banning same-sex marriage denies same-sex couples equal protection under the law.
The pink elephant in the marriage equality courtroom is religion, yet it is extremely rare for same-sex marriage bans to receive First Amendment religious rights-based inquiry. In 2009, the Supreme Court of Iowa changed all that. In its …
Gay Equality, Religious Liberty, And The First Amendment, Matthew J. Murray
Gay Equality, Religious Liberty, And The First Amendment, Matthew J. Murray
Matthew Murray
Are gay rights laws and religious liberty fundamentally in conflict? Would legal recognition of same-sex marriage lead to a wave of litigation threatening the religious liberty of those who object to such unions on religious grounds? Opponents of same-sex marriage have vocally asserted as much. This Article argues, however, that modifications in civil marriage laws in fact pose little to no threat to the liberty of religious objectors. Rather, the real arena of potential conflict between religious liberty and gay equality arises in the context of sexual orientation nondiscrimination laws. But these tensions are not new. The courts should be …
The Congressional Chaplaincies, Christopher C. Lund
The Congressional Chaplaincies, Christopher C. Lund
Christopher C Lund
Twenty five years ago, in Marsh v. Chambers, the Supreme Court considered the congressional chaplaincies, and concluded that they were not “an ‘establishment’ of religion or a step toward establishment,” but instead were “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” That latter phrase has been repeated hundreds of times in cases and law review articles; it suggests that the chaplaincies are uninteresting and uncontroversial and that they have been so throughout our history.
The Court in Marsh looked only briefly at the history of the chaplaincies. But a deeper look at that history …
Pacifist Aggressives Vs. The Second Amendment: An Analysis Of Modern Philosophies Of Compulsory Non-Violence, David B. Kopel
Pacifist Aggressives Vs. The Second Amendment: An Analysis Of Modern Philosophies Of Compulsory Non-Violence, David B. Kopel
David B Kopel
This Article examines the strengths and weaknesses of modern pacifist religious philosophy. The Article suggests that some intellectual arguments for pacifism are logically solid (once certain premises are granted), while others have serious flaws. The article discusses five influential philosophical advocates of non-violence Thomas Merton, Stanley Hauerwas, Leo Tolstoy, Tony Campolo, and John Howard Yoder. In addition, the Article examines three real-world cases where the practice of non-violence was put into action: the Danish rescue of the Jews during WW II, the American Civil Rights movement in the South in the 1960s, and the invasion of the Chatham Islands—the home …
Religious Arguments And The United States Supreme Court: A Review Of Amicus Curiae Briefs Filed By Religious Organizations, Andrew S. Mansfield
Religious Arguments And The United States Supreme Court: A Review Of Amicus Curiae Briefs Filed By Religious Organizations, Andrew S. Mansfield
Andrew S Mansfield
This paper analyzes forty-five amicus curiae briefs filed by religious organizations with the Supreme Court since Brown v. Board of Education, 348 U.S. 886, decided in 1954, through the decision in Ayotte v. Planned Parenthood, 546 U.S. 320, rendered in 2006. The forty-five amicus curiae briefs were filed in nineteen cases and concern issues that are often identified as “moral.” Analysis of the amicus curiae briefs filed with the Supreme Court by religious organizations provides at least three crucial insights. First, the legal arguments presented by religious organizations, as reflected in amicus curiae briefs filed with the Supreme Court, provide …
Traditional Values Or New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson
Traditional Values Or New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson
Eric Alan Isaacson
President William Howard Taft, a Unitarian leader whose liberal faith had been viciously attacked by religious conservatives in the 1908 presidential campaign, used the White House as a platform in 1911 to launch a new nonsectarian organization for youth: The Boy Scouts of America (“BSA”). Lately, however, the BSA itself has come under the control of religious conservatives – who in 1992 banned Taft’s denomination from the BSA’s Religious Relationships Committee, and in 1998 threw Taft’s denomination out of its Religious Emblems Program. The denomination’s offense: A tradition of teaching its children that institutionalized discrimination is wrong. Unitarian Universalist religious …
Prayer In Public Schools: Without Heat, How Can There Be Light?, Or Narrative As The Reasonable Way To Discuss The Arational. Report On The Second Annual Law Day Symposium Jointly Sponsored By The Center For First Amendment Rights And The University Of Connecticut School Of Law, Malla Pollack
Malla Pollack
Prayer in public schools cannot be discussed fully without recognizing the high emotions tied to religion -- and the danger of such emotions. Against a historical account of the adoption of the Establishment Clause, this article reports on a conference in which speakers presented disparate approachs to prayer in public schools: (i) the religious objection to allowing the state to undermine religion which is historically tied to Roger Williams; (ii) a narrow allegedly originalist argument in support of the practice; (iii) a suggestion to defuse religious-factionalism by teaching about religion as part of a multi-cultural curriculum; and (iv) a critique …