Law Commons^™

Adjudicating Religious Sincerity, Nathan Chapman

Scholarly Works

Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility …

The Forest And The Trees: What Educational Purposes Can A Course On Christian Legal Thought Serve?, Randy Beck

Scholarly Works

In this short essay, I want to consider the educational purposes a course in Christian legal thought might serve. How could having such a course in the curriculum help accomplish the goals of legal education? One can understand why a law school with a Christian identity would want to offer this sort of course. Such law schools embrace a theology that helps adherents make sense of the world, including the world of human law. The less obvious question I want to consider is why a law school that does not subscribe to a particular theological understanding of the world (or …

Rethinking Religious Minorities' Political Power, Hillel Y. Levin

Scholarly Works

This Article challenges the assumption that small religious groups enjoy little political power. According to the standard view, courts, because of their countermajoritarian qualities, are indispensable for protecting religious minority groups from oppression by the majority. But this assumption fails to account for the many and varied ways in which the majoritarian branches have chosen to protect and accommodate even unpopular religious minority groups, as well as the courts’ failures to do so.

The Article offers a public choice analysis to account for the surprising majoritarian reality of religious accommodationism. Further, it explores the important implications of this reality for …

The Establishment Clause, State Action, And Town Of Greece, Nathan Chapman

Scholarly Works

The Establishment Clause forbids the government from engaging in the same religious exercise that the law protects when performed by a private party. Thus, an establishment case often turns on whether religious activity is "state action." Too often, however, courts ignore the state action analysis or merge it with the substantive Establishment Clause analysis. This muddles both doctrines and threatens individual religious liberty.

This Article argues that the state action doctrine should account for the government's distribution of private rights. Accordingly, the Constitution applies to the government's distribution of rights, but not to a private party's use of those rights. …

When Faith Falls Short: Bankruptcy Decisions Of Churches, Pamela Foohey

Scholarly Works

What does a church do when it is about to go bust? Religious organizations, like any business, can experience financial distress. Leaders could try to solve their churches’ financial problems on their own. Perhaps leaders do not view the problems as addressable with law. Or perhaps they do not think, as a moral or spiritual matter, that they should resort to the legal system, such as bankruptcy, to deal with their churches’ inability to pay its debts. Yet about ninety religious organizations seek to reorganize under the Bankruptcy Code every year. This Article relies on interviews with forty-five of these …

When Churches Reorganize, Pamela Foohey

Scholarly Works

This Article combines an analysis of documents submitted in connection with Chapter 11 cases filed by religious organizations with the results of in-depth interviews with these organizations’ leaders and their bankruptcy attorneys to assess whether reorganization has the potential to offer an effective solution to these debtors’ financial distress. In doing, it makes three contributions. First, it identifies a subset of organizations that seemed more likely to turn to bankruptcy: small congregationalist and non-denominational churches, often with predominately African-American membership. The Article pinpoints salient questions about these churches’ access to credit and use of bankruptcy for future study. Second, it …