Law Commons^™

Justice Scalia, The Establishment Clause, And Christian Privilege, Caroline Mala Corbin

Articles

No abstract provided.

Newsroom: Rwu's News First Amendment Blog 12-07-2016, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Democratic First Amendment, Ashutosh Bhagwat

Northwestern University Law Review

Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist. The topic of this Article is the five …

Rlupia And The Limits Of Religious Institutionalism, Zachary A. Bray

Zachary Bray

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson

Katharine Jackson

This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.

Law, Religion, And Politics: Understanding The Separation Of Church And State, Richard Garnett

Richard W Garnett

Professor Richard Garnett, of University of Notre Dame Law School, presented on the topic Law, Religion, and Politics: Understanding the Separation of Church and State. This workshop was presented as part of the Hesburgh Lecture Series through the Alumni & Friends of University of Notre Dame and was co-sponsored by the Notre Dame Alumni Club of Miami. This workshop examined how to understand the Constitution's "separation of church and state" and what it requires of religious believers and institutions.

Partly Accultured Religious Activity: A Case For Accommodating Religious Nonprofits, Thomas C. Berg

Notre Dame Law Review

This Article argues that we should make real efforts to protect religious freedom for partly acculturated religious activities and organizations. We should not reject their claims broadly or per se and thereby exclude them from the efforts at accommodation that other groups receive. The law should not force all religious organizations and activities into one of the two polar categories, acculturated or unacculturated. Part II of this Article presents several reasons why there is a strong interest in protecting the freedom to engage in partly acculturated religious activity.

Against Martyrdom: A Liberal Argument For Accommodation Of Religion, Paul Horwitz

Notre Dame Law Review

Drawing in part on that literature, and in sympathy with the desire to reaffirm the importance of religious freedom and the accommodation of religious groups and practices without opposing or disdaining liberalism or progressivism altogether,18 this Article offers a liberal argument in favor of the legal accommodation of religion, including the accommodation of illiberal religious groups and practices. Although my own work is substantially pluralist in orientation, the argument here is intended to appeal directly to more “rationalist” liberals.

The Threat Of Independent Political Spending To Democratic Life—And A Plan To Stop It, Bruce Ledewitz

Ledewitz Papers

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

Religious Discrimination Based On Employer Misperception, Dallan F. Flake

Law Faculty Scholarship

This Article addresses the circuit split over whether Title VII prohibits discrimination based on an employer's misperception of an employee's religion. This is an especially critical issue because misperception-based religious discrimination is likely to increase as the United States continues to experience unprecedented religious diversification. Some courts read Title VII narrowly to preclude such claims, reasoning that the statutory text only prohibits discrimination based on an individual's actual religion. Other courts interpret the statute more expansively in concluding such claims are cognizable because the employer's intent is equally malicious in misperception and conventional discrimination cases. I argue that the statutory …

The Five Days In June When Values Died In American Law, Bruce Ledewitz

Ledewitz Papers

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

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Tears In Heaven: Religiously And Culturally Sensitive Laws For Preventing The Next Pandemic, Eloisa Rodriguez-Dod, Aileen M. Marty, Elena Marty-Nelson

Faculty Publications

In February 2016, the World Health Organization (WHO) declared a “public health emergency of international concern” due to the increased clusters of microcephaly, Guillain-Barré Syndrome, and other neurological disorders in areas affected by the Zika virus. That declaration came in the wake of the West Africa Ebola crisis. Back to back declarations by WHO of the highest threat level for an international public health emergency underscores how quickly pathogens can now spread and cause devastation across borders. It also highlights the need to implement lessons learned from each pandemic crisis without delay. These crises demonstrate that laws to curtail the …

Half-Baked: The Demand By For-Profit Businesses For Religious Exemptions From Selling To Same-Sex Couples, James M. Donovan

Loyola of Los Angeles Law Review

Should bakers be required to make cakes for same-sex weddings? This Article unravels the eclectic arguments that are offered in support of a religious exemption from serving gay customers in the wake of Obergefell.

Preliminary issues first consider invocations of a libertarian right to exclude. Rather than being part of our concept of liberty, this right to exclude from commercial premises is a new rule devised to prevent African Americans from participating in free society. Instead of expanding this racist rule to likewise bar gays from the marketplace, it should be reset to the antebellum standard of free access …

The Role Of Religiously Affiliated Law Schools In The Renewal Of American Democracy, Bruce Ledewitz

Bruce Ledewitz