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Articles 1 - 16 of 16
Full-Text Articles in Law
First Amendment Cases In The October 2004 Term, Joel M. Gora
First Amendment Cases In The October 2004 Term, Joel M. Gora
Touro Law Review
No abstract provided.
Ties That Bind? The Questionable Consent Justification For Hosanna-Tabor, Jessie Hill
Ties That Bind? The Questionable Consent Justification For Hosanna-Tabor, Jessie Hill
NULR Online
No abstract provided.
Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett
Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett
Richard W Garnett
The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …
Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett
Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett
Richard W Garnett
This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is an …
Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson
Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson
All Faculty Scholarship
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 and civil liberties ‒ that any activity must be permitted if it is not imposed upon others without their consent, and if …
Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson
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 …
Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain
Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain
Faculty Scholarship
This Article engages with Ronald Dworkin’s final book, Religion Without God, which proposes to shrink the size and importance of the fierce “culture wars” in the United States between believers and nonbelievers – theists and atheists – by separating out the “science” and “value” components of religion to show these groups that they share a “fundamental religious impulse.” Religion Without God also calls for framing religious freedom as part of a general right to ethical independence rather than a “troublesome” special right for religious people. This article compares the argumentative strategy of Religion Without God with prior Dworkin works, such …
Press Definition And The Religion Analogy, Ronnell Andersen Jones
Press Definition And The Religion Analogy, Ronnell Andersen Jones
Faculty Scholarship
n a Harvard Law Review Forum response to Professor Sonja West's symposium article, "Press Exceptionalism," Professor RonNell Andersen Jones critiques Professor West's effort to define "the press" for purposes of Press Clause exceptions and addresses the weaknesses of Professor West's analogy to Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC in drawing these definitional lines. The response highlights distinctions between Press Clause and Religion Clause jurisprudence and urges a more functional approach to press definition.
Supreme Court, Kings County, Wilson V. Kilkenny, James Dougherty
Supreme Court, Kings County, Wilson V. Kilkenny, James Dougherty
Touro Law Review
No abstract provided.
Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer
Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer
Touro Law Review
No abstract provided.
Religious Associations: Hosanna-Tabor And The Instrumental Value Of Religious Groups, Ashutosh Bhagwat
Religious Associations: Hosanna-Tabor And The Instrumental Value Of Religious Groups, Ashutosh Bhagwat
Ashutosh Bhagwat
In its 2012 decision in Hosanna-Tabor Evangelical Church & Sch. V. EEOC, the Supreme Court held that the Religion Clauses of the First Amendment require recognition of a “ministerial exception” to general antidiscrimination statutes (in that case, the ADA), because religious institutions must have autonomy in selecting their ministers. In the course of its analysis, however, the Court made a very interesting move. In response to the government’s argument that the case could be resolved under the general First Amendment right of association, the Court responded that this position was “untenable,” and indeed “remarkable,” because the very existence of …
The New Religious Institutionalism Meets The Old Establishment Clause, Gregory P. Magarian
The New Religious Institutionalism Meets The Old Establishment Clause, Gregory P. Magarian
Gregory P. Magarian
Recent religious liberty scholarship spotlights the legal rights of churches and similar religious institutions, as distinct from the rights of individual religious believers. Advocates of “the new religious institutionalism” argue that religious institutions need robust legal rights in order to effectuate their institutional functions and advance religious believers’ interests. The Supreme Court recently fanned the new institutionalist flame by holding, in Hosanna Tabor Evangelical Lutheran Church v. EEOC, that the Constitution protects churches from legal liability for employment discrimination in hiring ministers. In this essay, Professor Magarian considers a complication that advocates of the new religious institutionalism have generally ignored: …
Once We Were Slaves, Now We Are Free: Legal, Administrative, And Social Issues Raised By Passover Celebrations In Prison, Aviva Orenstein
Once We Were Slaves, Now We Are Free: Legal, Administrative, And Social Issues Raised By Passover Celebrations In Prison, Aviva Orenstein
Pepperdine Law Review
“Once we were slaves, now we are free” is a central line from the Jewish Passover Seder, a ritual meal in which participants retell the story of liberation from Pharaoh’s oppression. In prison, many Jewish inmates request access to a Seder and to kosher-for-Passover food for the eight-day holiday. Prisoners’ requests to celebrate Passover provide a rich example for exploring the Religious Land Use and Institutional Persons Act (RLUIPA), and raise a host of tough questions regarding cost, safety, equal treatment of prisoners, and establishment of religion. Because kosher-for-Passover meals are more expensive and generally of higher quality than regular …
Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett
Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett
Journal Articles
This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is an …
The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler
The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler
Faculty Scholarship
This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to …
Beit Din's Gap-Filling Function: Using Beit Din To Protect Your Client, Michael A. Helfand
Beit Din's Gap-Filling Function: Using Beit Din To Protect Your Client, Michael A. Helfand
Michael A Helfand
This article considers how rabbinical courts play an important gap-filling role by providing parties with a forum to adjudicate a subset of religious disputes that could not be resolved in court. Under current constitutional doctrine, civil courts cannot adjudicate disputes that turn on religious doctrine and practice. By contrast, rabbinical courts can resolve such disputes--and the decisions of rabbinical courts can then be enforced by civil courts even as those same civil courts could not resolve the dispute in the first instance. In this way, rabbinical courts--like other religious arbitration tribunals--fill a void created by constitutional law, ensuring that parties …