Law Commons^™

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

Protecting The Faithful From Their Faith: A Proposal For Snake-Handling In West Virginia, Robert W. Kerns Jr.

West Virginia Law Review

In the hills of Appalachia sing the hymns of the faithful, preaching a belief in the handling of snakes to prove loyalty to God. In West Virginia, persons may take up poisonous reptiles and pass them amidst crowds in the name of religion without legal restraints. While other states prohibit snake- handling in the name of safety, West Virginia law remains void on the issue. This Article introduces the practice of snake-handling and examines the risks posed by taking up poisonous animals whose bite may cause serious injury or death. This Article then suggests how the West Virginia law may …

Legal Ethics And Jurisprudence From Within Religious Congregations, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

A Hands-Off Approach To Religious Doctrine: What Are We Talking About?, Richard W. Garnett

Richard W Garnett

At the 2008 Annual Meeting of the American Association of Law Schools, the program organized by the Section on Law and Religion presented for consideration the claim that “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.” The Court, it was proposed, is — more and more — taking a “hands-off approach to religious doctrine.”

This proposal was, and remains, timely and important, as is illustrated by — to mention just a few, diverse examples — the ongoing property-ownership dispute between several “breakaway” Episcopal …

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

Richard W Garnett

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 …

Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett

Richard W Garnett

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …

Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett

Richard W Garnett

The First Amendment’s “Establishment Clause” is widely thought to protect “conscience.” Does it? If so, how? It is proposed in this paper that the no-establishment rule does indeed promote and protect religious liberty, and does safeguard conscience, but not (or, at least, not only) in the way most people think it does, namely, by sparing those who object from the asserted injury to their conscience caused by public funding of religious activity. The Supreme Court’s decision in Hein v. Freedom from Religion Foundation - a case in which the Justices limited taxpayer standing to bring Establishment Clause claims - reminds …

Religious Freedom, Church Autonomy, And Constitutionalism, Richard W. Garnett

Richard W Garnett

No abstract provided.

Forum Juridicum: Church Autonomy In The Constitutional Order - The End Of Church And State?, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley

Gerard V. Bradley

No abstract provided.

Law, Religion, And Pluralism: The Thought And Experiences Of Nathan Isaacs (1886-1941), Samuel Flaks

Touro Law Review

No abstract provided.

Some Thoughts On Sanford Levinson’S “Divided Loyalties: The Problem Of 'Dual Sovereignty' And Constitutional Faith”, David Novak

Touro Law Review

Analyzes the two divided loyalties that Levinson faces in "Divided Loyalties: The Problem of 'Dual Sovereignty' and Constitutional Faith."

Israel's Constitutional Tragedy, Menachem Lorberbaum

Touro Law Review

No abstract provided.

Dual Sovereignty In Traditional Judaism And Liberal Democracy, William Galston

Touro Law Review

No abstract provided.

Divided Loyalties: The Problem Of “Dual Sovereignty” And Constitutional Faith, Sanford Levinson

Touro Law Review

Sanford Levinson provides the inaugural lecture of the new Jewish Law Institute at Touro Law School. He focuses on some of the ways that he finds himself constantly thinking of what might be termed "meta-issues" that arise in his joint study of, and intellectual confrontation with, Jewish law and American constitutional law.

The Disincorporation Proclamation: Emancipating The Establishment Clause From The Fourteenth Amendment, Martin Wishnatsky

Martin Wishnatsky

No abstract provided.

Corporations, Taxes, And Religion: The Hobby Lobby And Conestoga Contraceptive Cases, Steven J. Willis

UF Law Faculty Publications

Beginning in 2013, the federal government mandated that general business corporations include contraceptive and early abortion coverage in large employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act.

So far, courts have been reluctant to hold corporations have religious rights of their own; as a …

Religious Pretenders In The Courts: Unmasking The Imposters, John O. Hayward

John O. Hayward

When courts decide First Amendment “Free Exercise” cases, they often are confronted with the daunting task of defining what exactly is a “religion.” This article examines how judicial definitions and interpretations of religious faith have evolved over many decades, including legal recognition of Wicca (modern day witchcraft) and Hare Krishna as “religions,” as well as courts steering clear of the issue whenever possible, for example, when faced with an adherent of the “Church of Body Modification” who claims her employer’s dress code violates her religion. It also explores how courts have sought to uncover deception and fraud hiding behind disingenuous …

Corporate “Soul”: Legal Incorporation Of Catholic Ecclesiastical Property In The United States - A Historical Perspective, Vicenç Feliú

Vicenç Feliú

This work is a revision and update of a study carried out in 1933 by Monsignor Patrick J. Dignan. Dignan’s purpose in his study was to outline the history of how the Roman Catholic Church secured laws for the protection of church property in accordance with the hierarchical nature of the Church. The purpose of the present article is to bring up to date Dignan’s work and complete a survey of the law in its present state. The article analyzes the differences in the law since the original survey to determine if Dignan’s conclusion that the Church should operate to …

Led Blindly: One Circuit's Struggle To Faithfully Apply The U.S. Supreme Court's Religious Symbols Constitutional Analysis, William M. Janssen

West Virginia Law Review

No abstract provided.

Cracking The Code: Amending Canon Law To Exclude Sexual Abuse Offenders From Roman Catholic Ordination, Hannah C. Dugan J.D.

Hannah C. Dugan J.D.

Abstract: In 2002, a public scandal broke in the United States revealing the depth of Roman Catholic clerical sex abuse, and exposing the breadth of failed episcopal response to victim complaints. Many civil, criminal, religious and bankruptcy court matters have been pursued to bring justice for victims and survivors. However, the Church’s Code of Canon Law, that lists specifically who may not be ordained, does not exclude sexual abuse offenders from holy orders. This article discusses legal and extra-legal remedies in the wake of the sexual abuse scandal, and argues for amending the Code of Canon Law so that the …

Anatomy Of The Reasonable Observer, Jessie Hill

Jessie Hill

The “reasonable observer”—the fictional person from whose perspective we are to judge whether a governmental display or practice violates the Establishment Clause—has been under fire for decades. Primarily, critics argue that the reasonable observer, as conceived by the Supreme Court, is incapable of representing a community perspective because he does not sufficiently resemble a flesh-and-blood person. This criticism can be further articulated as two specific complaints: first, that too much knowledge is imputed to the reasonable observer, making him more omniscient than the average passerby; and second, that the reasonable observer, like the average judge, is biased toward a majoritarian …

A Corporation Has No Soul - The Business Entity Law Response To Challenges To The Contraceptive Mandate Under The Ppaca, Thomas E. Rutledge

Thomas E. Rutledge

The most contentious matter in the implementation of the Patient Protection and Affordable Care Act (the “PPACA”) is not a question of health care, but rather one of the law of business organizations. The dispute has been over the requirement that group health insurance plans provide, on a no-cost sharing basis, coverage for a variety of procedures and prescription medicines involving contraception and what are described as “abortificants.”

The class of suits subject to this discussion were filed by what are not religious organizations but rather for-profit business ventures, asserting that they should be exempt from the requirements of the …

Evolving Christian Attitudes Towards Personal And National Self-Defense, David B. Kopel

David B Kopel

This Article analyzes the changes in orthodox Christian attitudes towards defensive violence. While the Article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The Article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism.

In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual's duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries.

Disillusionment over World War I turned many Catholics and Protestants …

The Politics Of Religious Establishment: Recognition Of Muslim Marriages In South Africa, Peter G. Danchin

Peter G. Danchin

This paper explores the normative dissonances and antinomies generated by the politics around religious establishment by examining post-apartheid law reform efforts in South Africa to recognize Muslim marriages. Since the late 1990s, the South African Law Reform Commission has initiated various projects to recognize the claims of and redress past discrimination against different religious communities, including tribal groups living under customary law and religious minorities with their own family and personal status laws. It is striking how the norms and assumptions underpinning this debate differ from engagements involving the claims of religious communities in Europe and North America where broadly …

Some Thoughts On The First Amendment's Religion Clauses And Abner Greene's Against Obligation, With Reference To Patton Oswalt's Character 'Paul From Staten Island' In The Film Big Fan, Jay D. Wexler

Faculty Scholarship

In this short contribution to a symposium held at Boston University in the fall of 2012, I review Abner Greene's recent book Against Obligation by considering whether Greene's broad theory of freedom from state obligations under the Free Exercise Clause of the First Amendment would protect the maniacal New York Giants fan "Paul from Staten Island," portrayed by the ridiculously talented Patton Oswalt in Robert Siegel's hilarious film "Big Fan." I also explain how I use the film in my Law and Religion class to teach the Free Exercise Clause and the deeply perplexing question of how the word "religion" …

U.S. Asylum Law As A Path To Religious Persecution, Jack C. Dolance Ii

Jack C Dolance II

U.S. asylum law protects against persecution “on account of . . . religion.” But must the law protect a non-believer seeking religious asylum in the United States? Many may instinctively answer “no,” for a non-believer is by most definitions not “religious.” Such a response misses the mark however — at least in the context of U.S. asylum law, which is subject to the First Amendment. The protection of religious liberty enshrined in the First Amendment embodies freedom from persecution on account of one’s “religion” — in whatever form that religion may take. In the asylum context, then, “religion” must be …

Tactics, Strategies & Battles—Oh My!: Perseverance Of The Perpetual Problem Regarding Preaching To Public School Pupils & Why It Persists, Casey S. Mckay

Casey Scott McKay

After reviewing the history of the religious war on Darwin’s Theory of Evolution, my article, “Tactics, Strategies & Battles—Oh My!: Perseverance of the Perpetual Problem Regarding Preaching to Public School Pupils & Why it Persists,“ examines why such a seemingly well-settled issue survives and, to some extent, succeeds.

First, by exploiting common misconceptions among the American public, lawmakers are able to take advantage of ignorance driven by strong emotions. Next, religious special interests groups, with seemingly unlimited funds, thrust propaganda supported by worldwide media reinforcement on an already vulnerable American public. Thus, irresponsible state legislators, caught between a rock and …

Religions As Sovereigns: Why Religion Is "Special", Elizabeth Clark

Faculty Scholarship

Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism …

Religions As Sovereigns: Why Religion Is "Special", Elizabeth A. Clark

Elizabeth A. Clark