Law Commons^™

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.

Catholic Social Teaching, The Right To Immigrate And The Right To Regulate Borders: A Proposed Solution For Comprehensive Immigration Reform Based Upon Catholic Social Principles, Chad G. Marzen, William Woodyard

Chad G. Marzen

In the past decade, policymakers from various perspectives have discussed and debated proposals to reform America’s immigration system. This article discusses not only the history of the Catholic legal and intellectual tradition’s contribution to social teaching on the issue of immigration, but emphasizes the development of two strands of Catholic thought: the right to immigrate, and the right to regulate borders. Applying the Catholic legal and intellectual tradition, this article provides a proposal for immigration reform that incorporates key tenets of Catholic social thought.

The Isis Crisis And The Development Of International Humanitarian Law, Johan D. Van Der Vyver

Johan D van der Vyver

ABOUT THE ARTICLE This article identifies the rules of international humanitarian law that have a bearing on the Israeli offensive in Gaza. It first of all attempts to establish whether or not Israel remained an Occupying Power after its disengagement from the Gaza Strip in 2005. If due to the control Israel continued to exercise over border crossings, electricity and water supplies and the like, Israel is found to be de facto in occupation of Gaza, the Hamas responses would qualify as a war of liberation, which in terms of Protocol I to the Geneva Conventions of 12 August 1949 …

Stemming The Hobby Lobby Tidal Wave: Why Rfra Challenges To Obama's Executive Order Prohibiting Federal Contractors From Discriminating Against Lgbt Employees Will Not Succeed, Kayla Higgins

Kayla Higgins

On July 21, 2014 President Obama released Executive Order 13672, which expressly aimed to provide for a uniform policy for the Federal Government to prohibit discrimination and take further steps to promote economy and efficiency in Federal Government procurement by prohibiting discrimination based on sexual orientation and gender identity. Some commentators believe that the order “could be the next battleground” for the competing views of religious leaders and liberals when it comes to how to weigh religious liberty against other priorities. However, there are two main reasons why the most recent executive order should not crumble under the Hobby Lobby …

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …

Latest Surveys And Polls On Bascule Of Religion And Belief In Both The United Kingdom And Iran, Mohamad Ali Ali Yousefkhani Mr

Mohamad Ali Ali Yousefkhani

Numerous surveys indicate that the proportion of individuals who do not hold religious beliefs is steadily increasing. Religions and beliefs are notoriously difficult to measure, as they are not fixed or innate, and therefore any poll should be primarily treated as an indication of beliefs rather than a concrete measure. However, one of the foremost respected measures of religious attitudes is the annual British Social Attitudes Survey, further details of the latest report may be found on NatCen’s website

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 …

God & Man In The Military: Military Commanders And The First Amendment, James J. Woodruff Ii

James J. Woodruff II

In an attempt to provide clarity in the stormy seas presented at the intersection of church and state we have followed a three-step process to resolve religious liberty issues. A military commander may experience bewilderment when confronted with questions such as when is public prayer allowed or when can a religious artwork be displayed on amilitary installation. This article will review the three-step process to utilize in answering most religious-based First Amendment issues that arise during military operations. It will also provide a new manner of thinking regarding the separation of church and state.

La República Laica Y Sus Libertades. Las Reformas A Los Artículos 24 Y 40 Constitucionales, Javier Martín Reyes, Pedro Salazar Ugarte, Paulina Barrera Rosales, Vladimir Chorny Elizalde, Ana Gaitán Uribe, María De Guadalupe Salmorán Villar

Javier Martín Reyes

The Secular Republic and its Freedoms: Constitutional Amendments to Articles 24 and 40.

Verboten: Forbidden Homeschooling In Germany And Its Conflict With International Religious Freedom., Jacob A. Aschmutat

Jacob A Aschmutat

Germany maintains strict compulsory education laws that prevent families from educating their children at home. Germany strictly enforces these laws, with little regard to the families’ incentives to remove their children from the public schools. As such, these laws contain no exemption for families interested in homeschooling for religious purposes. The absence of such an exemption seems to contradict the internationally recognized right to religious freedom, a right concretely granted through three international treaties that Germany has both signed and ratified. Several decisions by the European Court of Human Rights give little to no credence to the notion of religious …

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of …

Free Exercise And The Definition Of Religion: Confusion In The Federal Courts, Mark Strasser

Mark Strasser

The United States Supreme Court has sent mixed messages about what constitutes religion for free exercise purposes. The Court’s failure to offer clear criteria has resulted in widely differing interpretations in the lower courts, resulting in dissimilar treatment of relevantly similar cases. Further, some of the circuit courts employ factors to determine what qualifies as religious that are much more restrictive than the factors employed by the Court.

This article describes some of the differing approaches to defining religion offered in the circuits, noting that one of the approaches adopted across a few circuits not only mischaracterizes the Supreme Court’s …

Definitions, Religion, And Free Exercise Guarantees, Mark Strasser

Mark Strasser

The First Amendment to the United States Constitution protects the free exercise of religion. Non-religious practices do not receive those same protections, which makes the ability to distinguish between religious and non-religious practices important. Regrettably, members of the Court have been unable to agree about how to distinguish the religious from the non-religious—sometimes, the implicit criteria focus on the sincerity of the beliefs, sometimes the strength of the beliefs or the role that they play in an individual’s life, and sometimes the kind of beliefs. In short, the Court has virtually guaranteed an incoherent jurisprudence by sending contradictory signals with …

Adopted And Illegitimate Child Under Indian Christian Law: Revisiting Inheritance Rights, Archana Mishra

Archana Mishra

Christian law of inheritance in India regulated by Indian Succession Act, 1925 steered by rule of kinship recognizes only consanguinity as a determining factor for title to succession and does not protect the rights of adopted and illegitimate child to inherit property. Christian law though grants equal inheritance rights to sons and daughters and protects right to property of surviving spouse but allows only children born from valid marriage to inherit. Denial of inheritance rights to adopted and illegitimate children causes social and economic deprivations. Inheritance practices among Christians disallowing such rights to adopted or illegitimate children of the deceased …

Same-Sex Marriage And Religious Liberty Clashes In The U.S.: (A Constitutional Challenge), Patrick M. Talbot

Patrick M Talbot

Two major issues have surfaced on the clash between same-sex marriage, as a concept, and religious freedom to oppose it. These are the States' rights to keep the traditional definition of marriage as part of a time-honored standard, and the right of small businesses to abstain from events supporting same-sex unions, as a matter of conscience. The paper addresses both these and suggests what the SCOTUS ought to do in looking ahead to its June 2015 decision in Obergefell v. Hodges, et. al., and following the principles laid out in its Estate of Windsor, and Hobby Lobby cases of the …

Same-Sex Marriage And Religious Liberty Clashes In The U.S., After Obergefell V. Hodges: (An American Constitutional Challenge), Patrick M. Talbot

Patrick M Talbot

This is a revision of an earlier article, to be published in a forthcoming book in Indonesia on religious liberty, in a comparative study of events in America. It examines two issues impacting religious liberty against a "right" to same-sex marriage, after SCOTUS' decision in Obergefell v. Hodges. Issue I is about the now lost right of States to adhere to a traditional definition of marriage, through a democratic process. Issue II is about the impact this case will have on religious vendors seeking to abstain from involvement in same-sex wedding and similar ceremonies (gay celebrations) on grounds of sincere …

Scrutinizing Polygamy: Utah's Brown V. Buhman And British Columbia's Reference Re: Section 293, Maura I. Strassberg

Maura I Strassberg

In Brown v. Buhman, the recent challenge to the Utah law criminalizing polygamy brought by the stars of the reality television show Sister Wives, a federal district court determined both that strict scrutiny was required and that strict scrutiny could not be satisfied. A significant factor in this result was the state’s failure to mount a strong defense of the law, assuming that it could rely on long standing polygamy precedents such as the United States Supreme Court decision in Reynolds v. United States and more recent Tenth Circuit and Utah Supreme Court decisions to justify limiting scrutiny to rational …

Islamic Theory Of Conflict Of Commercial Law: A Proposition, Anowar Zahid

Anowar Zahid

The parties to an international commercial/financial contract may choose a single law or a combination of law like English law and Islamic law to settle their dispute that may arise therefrom. At the same time, they may choose a forum (law court or arbitration tribunal) belonging to an Islamic jurisdiction. Such a choice of law and forum deserve a theoretical enquiry from Islamic perspective since it gives rise two important issues. First, if the choice is a single secular law and it conflicts with Shari'ah law in full or in part, then how the forum will reconcile the conflicts. It …

Money From Syar’Iah Perspective, Anowar Zahid

Anowar Zahid

In history, paper money systems have always wound up with collapse and economic chaos. Today, the usage of fiat currency, a form of paper money and the correlate bank money has brought about wide spread hardships and sufferings upon many sectors of society and communities. Following in depth syari’ah analysis, the only conclusion that is possible is that fiat currency and bank money are illegal. They are, in reality, introduced through manipulative collaborations between governments and bank cartels, as they defy the long established sanction against riba’ (usury), operate at the advantage of a selected group in society to the …

Corporations And Religious Freedom: Hobby Lobby Stores - A Missed Opportunity To Reconcile A Flawed Law With A Flawed Health Care System, Matthew A. Melone

Matthew A. Melone

On June 30, 2014, the Supreme Court held, in Burwell v. Hobby Lobby Stores, Inc., that the requirement imposed on employer group health insurance plans to provide coverage for certain contraceptives unduly burdened the free exercise rights of three closely-held corporations in violation of the Religious Freedom Restoration Act of 1993 ( RFRA ). The contraception mandate was imposed by regulations implementing the Patient Protection and Affordable Care Act, itself a very controversial piece of legislation a part of which was upheld recently by the Court in a perhaps a case more controversial than Hobby Lobby Stores. RFRA was enacted …

Narrow Tailoring, Compelling Interests, And Free Exercise: On Aca, Rfra And Predictability, Mark Strasser

Mark Strasser

The holding in Burwell v. Hobby Lobby Stores, Incorporated was narrow in scope—closely held, for-profit corporations must be afforded an exemption from providing insurance coverage for a few types of contraception if the corporation has religious objections to providing that coverage. In addition, the exemption requirement was based on a construction of federal statute rather than on the Constitution’s free exercise guarantees. Both the narrowness of the holding and the Court’s express disavowal that it was offering a constitutional analysis might make the opinion appear relatively inconsequential. However, because the opinion changes the focus and standards of federal law and …

Natural Law, Natural Rights, And Same Sex Marriage, Shannon Holzer

Shannon Holzer

ABSTRACT The Definition of Rights and Same-Sex Marriage The claim that same-sex couples have the right to be married needs to be explained according to particular theories of rights. This presents a problem for same-sex marriage (SSM) advocates for two reasons. First, if SSM advocates suggest that they have a natural right to be married (as rights were understood by Thomas Jefferson in the Declaration of Independence), then they have the burden to prove that this is the case. Yet, Natural Rights entail Natural Law (NL), and NL tends to support teleological definitions of marriage. Thus, the SSM advocate must …

China’S Ftas And Gats: The Consistency, Christina Tao

Christina Tao

No abstract provided.

God And Guns: The Free Exercise Of Religion Problems Of Regulating Guns In Churches And Other Houses Of Worship, John M. A. Dipippa

John M. A. DiPippa

The article demonstrates that the cases raising religious liberty challenges to state regulation of weapons in houses of worship reveal the persistent problems plaguing religious liberty cases. First, these cases illustrate the difficulties non-mainstream religious claims face. Courts may not understand the religious nature of the claim or they may devalue claims that do not seem “normal” or “reasonable.” This is compounded how few religious liberty claimants, especially non-mainstream religions, win their cases. Second, the cases are part of the larger debate about how easy it should be to get judicially imposed religious exemptions from general and neutral laws. Uncritically …

When Art Becomes Free: On Artistic In-Expression & Personal Convictions, Amir H. Khoury

Amir Khoury

In this paper I argue that just as there are moral rights in copyright law, which secure attribution and integrity, so too, there should be 'inverse' moral rights that can protect artists from being impelled or compelled to create in the first place. This research comes against the backdrop of one of the most contentious issues in the Western world today, that pertaining to same-sex marriage. But the discussion applies to all other fields where creativity finds itself in a battle over personal convictions. In my view, the inverse moral rights construct is the true reflection of the extent of …

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Frederick Mark Gedicks

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is somehow absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent. The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What …

A "Bare ... Desire To Harm?" Marriage And Catholic Conscience Post - Windsor, Helen M. Alvare

helen m alvare

No abstract provided.

China’S Domestic Legislation Relating To Its Gats Obligations:, Christina Tao

Christina Tao

This paper explains how China’s GATS obligations are implemented, illustrates the structure of relevant domestic legislation from the Constitution to departmental rules, and summarizes the characteristics of domestic legislation. Based on the analysis of the structure and characteristics, this paper tries to reveal some common problems which are not just existent in certain service sectors but are applicable in all service sectors and may affect the implementation of China’s GATS obligations. In the light of the examination of domestic legislation relating to trade in services, this thesis exposes four potential problems: lack of transparency, lack of legislation on the other …

Muslim Personal Laws Vis-S-Vis Uniform Civil Code: Prospects And Constraints, Sukdeo Ingale, Priyanka Gawai

Sukdeo Ingale

This paper addresses the tousle between Muslim personal laws and Uniform Civil Code. India is a multi-religious ‘secular’ country, where every religion is divided in different sects and denominations having their different (and sometime contradicting) customs and traditions. The personal laws based on such customs and traditions having ‘utmost religious content’ govern various matters including marriage, divorce, succession, inheritance, adoption, maintenance, guardianship, etc. This created difficulties in distribution of justice. To answer this issue, ‘the idea of Uniform Civil Code’ was first mooted in the Constituent Assembly in 1947. Uniform Civil Code, only three words have divided the nation into …

Reflexiones Constitucionales Del Poder De La Iglesia®, Daniel Fernando Gómez Tamayo

Daniel Fernando Gómez Tamayo

¿Cómo hacen los Clérigos del castrense o de las diócesis para administrar el sacramento de la reconciliación si existen supuestos fácticos concretos que son ilícitos graves, o que obedecen a causas psicológicas, médicas o forenses?Es importante revisar el contenido de los programas de formación sacerdotal, para que los obiter dictum y las reglas de la teologia moral no dañen la conciencia de los adolescentes que están construyendo relaciones heterosexuales, o que tienen relaciones prematrimoniales sanas según la ratio decidendi de la ley natural. ¿Què sucede si el clèrigo defiende la polìtica LGBT e ignora los aportes canonìsticos?. ¿què sucede si …