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Where's The Beef?, Stanley Fish Dec 2014

Where's The Beef?, Stanley Fish

San Diego Law Review

A key concern of the papers written for this conference is the relationship between religious beliefs and secular beliefs of the kind that carry with them deep ethical obligations. Are these systems of belief essentially the same or are they different in important respects? The question is typically posed abstractly, and I thought it might be useful to have before us an example of religious belief and the demands that attend it. The example is taken from the beginning of John Bunyan’s The Pilgrim’s Progress. Christian, Bunyan’s protagonist, has suddenly become aware that his salvation is imperiled, and he is …


Religion And Insularity: Brian Leiter On Accommodating Religion, Christopher J. Eberle Dec 2014

Religion And Insularity: Brian Leiter On Accommodating Religion, Christopher J. Eberle

San Diego Law Review

Crucial to Leiter’s overall case is the claim that there is no credible reason to accommodate religious objectors but not secular objectors: “[N]o one has been able to articulate a credible principled argument . . . that would explain why . . . we ought to accord special legal and moral treatment to religious practices.” He reaches this skeptical conclusion, in significant part, because he takes religion to be afflicted with a troubling defect, that is, religion involves commitment to categorical demands that are insulated from scientific and commonsensical scrutiny. But, I will argue, there is no good reason to …


Why Distinguish Religion, Legally Speaking?, Winnifred Fallers Sullivan Dec 2014

Why Distinguish Religion, Legally Speaking?, Winnifred Fallers Sullivan

San Diego Law Review

Law professors commonly answer this critique by scholars of religion, as Andrew Koppelman does, with the comment that, after all, any ambiguity in definition only arises in a few cases. Most of the time the reference is obvious, he says. Moreover, he insists, it has worked fine for all those for whom it should work. But that is the problem—its very obviousness. The problems of exclusion are largely invisible. The reference is so obvious to many and so obviously inclusive of those who are deserving that there is no way to have a conversation about it without the conversation devolving …


“Religion” As A Bundle Of Legal Proxies: Reply To Micah Schwartzman, Andrew Koppelman Dec 2014

“Religion” As A Bundle Of Legal Proxies: Reply To Micah Schwartzman, Andrew Koppelman

San Diego Law Review

The debate among legal scholars about whether religion is special is chronically confused by the scholars’ failure to grasp a point familiar in the academic study of religion: “religion” is a label for something that has no ontological reality. Religion has no essence. If it has a determinate meaning, it is simply because there is a settled and familiar practice of applying the label of religion in predictable ways. The question of religious accommodation arises in cases where a law can allow some exceptions. Many laws, such as military conscription, taxes, environmental regulations, and antidiscrimination laws, will accomplish their ends …


Religion As A Legal Proxy, Micah Schwartzman Dec 2014

Religion As A Legal Proxy, Micah Schwartzman

San Diego Law Review

In what follows, after briefly summarizing Koppelman’s position, I argue that his view is vulnerable to the charge that using religion as a legal proxy is unfair to those with comparable, but otherwise secular, ethical and moral convictions. Koppelman has, of course, anticipated this objection, but his responses are either ambivalent or insufficient to overcome it. The case for adopting religion as a proxy turns partly on arguments against other potential candidates. In particular, Koppelman rejects the freedom of conscience as a possible substitute. But even if he is right that its coverage is not fully extensive with the category …


Religion, Meaning, Truth, Life, Frederick Mark Gedicks Dec 2014

Religion, Meaning, Truth, Life, Frederick Mark Gedicks

San Diego Law Review

I am a believer, yet I will also say that it is simply not correct that only religion can offer deep meaning to life, and I can say this out of my own experience. Ordinary activities can be crucial to the meaning of one’s life, whether or not they are experienced or defined as “religious.” Though not all such activities are as morally serious as religious belief and practice, some are, and they are surely not “nihilistic” or “nothing” because they lack the character of transcendent religious truth.


Galston On Religion, Conscience, And The Case For Accommodation, Larry Alexander Dec 2014

Galston On Religion, Conscience, And The Case For Accommodation, Larry Alexander

San Diego Law Review

So these are some reasons why political theory might dictate that religious dissenters be accommodated even though, by enacting the laws to which the dissenters object, government indicates that it believes the dissenters err. If political theory justifies religious accommodations, however, then when government acts on the basis of political theory, is it establishing a religion? Bill argues, in support of Seeger, that claims of conscience derived from moral theory can qualify for accommodations under the Free Exercise Clause. But the two religion clauses in the Constitution use the noun “religion” only once. So if claims of conscience derived from …


How Much Autonomy Do You Want?, Maimon Schwarzschild Dec 2014

How Much Autonomy Do You Want?, Maimon Schwarzschild

San Diego Law Review

At root, the questions of special accommodation and religious adjudicatory independence arise most urgently when a government grows in its reach and ambition. After all, if most areas of life, including those that touch on religious life, are left to people’s private arrangement, then not much special accommodation will be necessary. But when government takes control over more and more areas of life, regulating who shall do what and under what rules and conditions, then clashes with one or another religious way of life are almost inevitable. The dispute over government mandates to provide abortive drugs and contraception, in the …


Religion, Conscience, And The Case For Accommodation, William A. Galston Dec 2014

Religion, Conscience, And The Case For Accommodation, William A. Galston

San Diego Law Review

I do not believe that religion is an obsolete constitutional category. But I do believe that the holdings in United States v. Seeger and Welsh v. United States, the Vietnam-era draft cases that extended conscientious objector status to individuals invoking nonreligious claims, were correct. Can I consistently embrace both propositions? I think I can. My argument, in brief, is that religion is indeed special. But when we understand what it is about religion that warrants both distinctive privileges and distinctive burdens, we will see that some other systems of belief track these features of religion closely enough to warrant comparable …


Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett Nov 2014

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 Nov 2014

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 Oct 2014

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 …


The Right To Free Exercise Of Religion In Prisons: How Courts Should Determine Sincerity Of Religious Belief Under Rluipa, Noha Moustafa Oct 2014

The Right To Free Exercise Of Religion In Prisons: How Courts Should Determine Sincerity Of Religious Belief Under Rluipa, Noha Moustafa

Michigan Journal of Race and Law

Religion plays a vital role in the daily lives of many prisoners. For incarcerated persons, a connection to the divine can provide comfort during periods of isolation from their family and community. From a policy perspective, spiritual development and religious practice promote rehabilitation and reduce recidivism in inmates. While prisoners forfeit many of their civil liberties, Congress has ensured that religious exercise is not among them. As Congress enhanced religious freedom protections for prisoners, prison facilities became increasingly concerned that prisoners would feign religiosity to gain certain religious accommodations. To counter this concern, prison facilities conditioned accommodations on the sincerity …


The European Court Of Human Rights And Intragroup Religious Diversity: A Critical Review, Lourdes Peroni Apr 2014

The European Court Of Human Rights And Intragroup Religious Diversity: A Critical Review, Lourdes Peroni

Chicago-Kent Law Review

This Article examines the ways in which one of the most established human rights courts—the European Court of Human Rights—encourages or discourages intragroup religious diversity when dealing with religious freedom claims. In particular, it critically assesses the Court’s attentiveness to internal group diversity by scrutinizing the objective filters that the Court employs to determine whether certain practices “count” as a manifestation of claimants’ religion for legal purposes. The Article argues that, at times, these filters are based on assumptions about religion and religious groups that impede recognition of more lived experiences of religion and internal group diversity. The Article further …


Complicity And Collection: Religious Freedom And Tax, Jennifer Carr Apr 2014

Complicity And Collection: Religious Freedom And Tax, Jennifer Carr

Scholarly Works

This Article focuses on how the Religious Freedom Peace Tax Fund Bill might be improved so that members of Congress enact it. The bill would allow war tax resisters who qualify as pacifists to direct their tax money to a separate fund not to be used for military spending. At present, the IRS is expending time and resources trying to track down tax resisters, which results in loss of revenue for the government. This Article argues that passage of an amended version of the Religious Freedom Peace Tax Fund Bill would eliminate the tension between the IRS and war tax …


The Challenge Of Strong Religion In The Liberal State, Gila Stopler Jan 2014

The Challenge Of Strong Religion In The Liberal State, Gila Stopler

Gila Stopler

Liberal states are struggling to find ways to deal with strong religion in a manner that would enable them to give due respect to the religious beliefs of citizens while at the same time to adhere to core liberal values such as respect for human rights and avoidance of undue entanglement of religious and state authority. One type of solution that has been offered is granting authority and autonomy to private religious tribunals, for example in the area of religious family law. Another type of solution is creating a direct link between state law and some religious obligations, as was …


The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe Jan 2014

The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe

Cornell Law Faculty Publications

In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.


Too Strict?, Richard B. Collins Jan 2014

Too Strict?, Richard B. Collins

Publications

Should the strict scrutiny standard govern judicial review of claims that government has burdened religious freedom? American law’s patchwork of rules applies that demanding standard to some claims but denies any meaningful review to others. A major difficulty is that most claims alleging denial of religious freedom depend on beliefs that cannot be reviewed by secular courts. Claims based on allegations alone shift the burden to the defending government. Strict scrutiny purports to make justification very difficult; governments are supposed to lose most cases. A second defect of the test in religious freedom cases is its failure to consider harm …


Accommodation, Establishment, And Freedom Of Religion, Richard W. Garnett Jan 2014

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 …