Law Commons^™

Religion As Disobedience, Xiao Wang

Vanderbilt Law Review

Religion today offers plaintiffs a ready path to disobey laws without consequence. Examples of such disobedience abound. In the past few years alone, courts have enjoined vaccine mandates, invalidated stay-at-home orders, and set aside antidiscrimination laws protecting same-sex couples. During the 2021-2022 Term, plaintiffs relied once again on free exercise to subvert laws governing public education, capital punishment, and school prayer. Some hospitals have begun denying fertility treatment to LGBTQ employees on this same basis.

How did religion become a skeleton key for lawbreaking without repercussion? The conventional wisdom is that, after decades of neglect, the Supreme Court finally began …

Explicit Bias, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

In recent decades, legal scholars have advanced sophisticated models for understanding prejudice and discrimination, drawing on disciplines such as psychology, sociology, and economics. These models explain how inequality is implicit in cognition and seamlessly woven into social structures. And yet, obvious, explicit, and overt forms of bias have not gone away. The law does not need empirical methods to identify bias when it is marching down the street in Nazi regalia, hurling misogynist invective, or trading in anti-Muslim stereotypes. Official acceptance of such prejudices may be uniquely harmful in normalizing discrimination. But surprisingly, many discrimination cases ignore explicit bias. Courts …

The Free Exercise Of Religious Identity, Lauren Sudeall

Vanderbilt Law School Faculty Publications

In recent years, a particular strain of argument has arisen in response to decisions by courts or the government to extend certain rights to others. Grounded in religious freedom, these arguments suggest that individuals have a right to operate businesses or conduct their professional roles in a manner that conforms to their religious identity. For example, as courts and legislatures have extended the right to marry to same-sex couples, court clerks have refused to issue marriage certificates to such couples, claiming that to do so would violate their religious beliefs. Similarly, corporations have refused, for reasons grounded in religious identity, …

Tax, Don't Ban: A Comparative Look At Harmful But Legitimate Islamic Family Practices Actionable Under Tort Law, Benjamin Shmueli

Vanderbilt Journal of Transnational Law

Massive migration of Muslims to the West in recent years has raised the question whether Shari'a--Islamic law--should apply to Muslim couples living in these countries. The issue is particularly acute when it comes to family life and the possibility of using tort law in cases of harmful religious practices that are permitted by Muslim law but are contrary to Western liberal values. Using tort law as a soft solution, that is, taxing that practice rather than banning it by criminal sanctions, may be a balanced and efficient solution, at least in some cases. The Article demonstrates this view--tax, don't ban--through …

The Future Of Sharia Law In American Arbitration, Erin Sisson

Vanderbilt Journal of Transnational Law

A rising tide of Islamophobia in the United States has led, in recent years, to state-level efforts to prohibit the application of Sharia law in American courts. While these bans have been largely unsuccessful as legislation--the U.S. Tenth Circuit Court of Appeals has even declared one such ban unconstitutional--the growing uneasiness among Americans regarding the application of Sharia law persists. Similar tensions have been addressed in Canada and the United Kingdom through reform of the application of Sharia law in alternative dispute resolution (ADR) mechanisms. By taking a critical look at the American ADR system through the lens of Canadian …

Religious Rights In Historical, Theoretical, And International Context: Hobby Lobby As A Jurisprudential Anomaly?, S. I. Strong

Vanderbilt Journal of Transnational Law

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court's recent decision in Burwell v. Hobby Lobby Stores, Inc. has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …

Baptizing O'Brien: Towards Intermediate Protection Of Religiously Motivated Expressive Conduct, Daniel J. Hay

Vanderbilt Law Review

Despite the relative prominence of religious expression in society' and its elevated status in constitutional law, the Supreme Court has struggled to articulate a consistent standard of review for neutral, generally applicable laws that indirectly burden religious expression. Since the late nineteenth century, the Court has vacillated between a highly deferential belief-action dichotomy and a more searching (albeit selectively applied) compelling interest test. Currently, the Court embraces a hybrid categorical-rational basis standard that relies in part upon a highly criticized assumption that the political process will be solicitous of minority religious practice. This retreat to rational basis has subordinated religious …

Liberalizing The Law In The Land Of The Lord: Limits To The Americanization Of Israeli Religious Jurisprudence, Andrea B. Jenkins

Vanderbilt Journal of Transnational Law

This Note presents an analysis of American and Israeli constitutional jurisprudence concerning matters of religion. Recently, there has been a shift in Israel's High Court of Justice toward implementing values of individual rights and religious pluralism. Some have analogized this shift in focus to the role played by the U.S. Supreme Court. However, fundamental differences remain between the American and Israeli approaches, stemming from divergent conceptions of national identity encapsulated in the states' respective foundational legal documents.

This Note examines the interplay of national identity and religious jurisprudence and its effect on individuals' legal rights. In doing so, it demonstrates …

Toward A Rfra That Works, Nicholas Nugent

Vanderbilt Law Review

The history of the Supreme Court's First Amendment jurisprudence regarding the proper standard of protection for the free exercise of religion is complicated. In determining how the First Amendment speaks to situations in which generally applicable health, welfare, and safety laws incidentally or accidentally burden certain individuals' religious practices, the Court has vacillated between different standards and different extremes, overruling itself several times. Early on, the Court held that, provided the government did not interfere deliberately with religion for religious reasons, an inadvertent interference with religious practice raised no Free xercise Clause problem,' "no matter how trivial the state's nonreligious …

Changing The Rules Of Establishment Clause Litigation: An Alternative To The Public Expression Of Religion Act, Christopher D. Tomlinson

Vanderbilt Law Review

In 2004, the American Civil Liberties Union ("ACLU") threatened to sue the city of Redlands, California, if it did not remove a small cross from its city seal.' The cross represented the city's religious heritage and its history as a city of churches. Instead of facing the possibility of litigation and the more daunting risk of losing in court and being forced to pay the ACLU's attorneys' fees in addition to its own, the Redlands City Council agreed to change the seal. The City of Redlands not only could ill afford the risk of paying the ACLU's attorneys' fees; it …

Red, White, But Mostly Blue: The Validity Of Modern Sunday Closing Laws Under The Establishment Clause, Lesley Lawrence-Hammer

Vanderbilt Law Review

On a Sunday morning, the average American might hope to enjoy any number of activities: attending a church service, drinking a mimosa with brunch, shopping for clothes at the mall, looking for a new car, or hunting with friends. However, in a surprisingly large number of states, only one of these activities would be legal: going to church.

Such is the result of blue laws,' the colloquial term for state statutes that regulate or prohibit entertainment and commercial activities on Sundays or religious holidays. Originating in England, blue laws were enacted throughout colonial America in an effort to protect the …

Islamic Arbitration: A New Path For Interpreting Islamic Legal Contracts, Charles P. Trumbull

Vanderbilt Law Review

Muslims living in a secular, liberal democratic state face a fundamental dilemma: reconciling the obligation to live according to Shari'a with their civic duty to follow secular laws. Muslims attempt to resolve this dilemma in a number of ways. Some enter public office and try to influence the generally applicable laws of their country. Others advocate greater legal pluralism, thus allowing Muslims to settle certain disputes under Islamic law. In Canada, for example, the Islamic Institute for Civil Justice ("IICJ") announced plans to create Shari'a tribunals and claimed that it would begin arbitrating family and commercial disputes according to Islamic …

Constitutional Conversations And New Religious Movements: A Comparative Case Study, Leigh H. Greenhaw, Michael H. Koby

Vanderbilt Journal of Transnational Law

Using the metaphor of a constitutional conversation to compare the treatment of a relatively new and unpopular religion by the legal systems of the United States, Russia, and Spain, this Article examines the methodology by which laws affecting religion are made and enforced. It uses as a case study the interaction of the Jehovah's Witnesses with the legal system of the United States, comparing it with more recent interactions in Russia and Spain. The Authors argue that while the experience in the United States was profoundly influenced by a common-law methodology, the experience in two civil-law countries, Russia and Spain, …

Silence Of The Lambs: Are States Attempting To Establish Religion In Public Schools?, Linda D.W. Lam

Vanderbilt Law Review

The proper role of religion in public schools has been a topic of bitter debate for many years. While one group of individuals believes that there should be a complete separation of church and state, another group believes that religion should have an integral place in public education. Although both groups have looked to the circumstances surrounding the enactment of the First Amendment to support their respective positions, each has been unable to find clear, definitive support regarding the appropriate relationship between religion and public schools, as there was no public education system at that time. One major issue that …

The Evolution Of Iranian Islamism From The Revolution Through The Contemporary Reformers, Jeffrey Usman

Vanderbilt Journal of Transnational Law

This Note explores the evolution and maturation of Iranian Islamism from the revolutionary elites through the contemporary reformers of the 21st century. The Author examines the conflicting ideological influences that are shaping the Islamist movement in Iran. This Note begins by presenting the framework of the fundamental contradictions that underlie Iranian Islamist ideology. The analysis of the Iranian Constitution is divided into an exploration of the institutional role of the clerical elites in the form of the faqih and the Council of Guardians, the constitutionally defined role of women, the democratic elements in the Iranian Constitution, and Marxism and environmentalism …

The Forest And The Trees, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

Ask those who carefully follow the Supreme Court, and they will tell you that--for good or bad, depending on their perspective--the current Supreme Court has reduced to near rubble the metaphorical wall separating church and state.

Book Review, Steven D. Smith, Reviewer

Vanderbilt Journal of Transnational Law

Surely none of the following essays addresses or explores these claims and questions in any deliberate way. Nonetheless, in these opening pages, it seems that Ahdar is seeking to re-engage the questions that characterized the Western tradition from which our modern issues in law and religion descend, but which that tradition in its modern form has by now largely suppressed. The implication, it seems, is that in order to address the issues of the interaction of law and religion in an efficacious way, we must not only acknowledge that religion is a social phenomenon--although it is that, as Professor van …

The New Face Of Creationism: The Establishment Clause And The Latest Efforts To Suppress Evolution In Public Schools, Deborah A. Reule

Vanderbilt Law Review

Over seventy-five years after the impassioned debate be- tween William Jennings Bryan and Clarence Darrow echoed through a hot Tennessee courtroom, the controversial confrontation over science, religion, law, and education can still be heard in legislative halls, courtrooms, schools, and homes across the nation. The now infamous "Scopes Monkey Trial" of 19253 brought the debate between religious fundamentalism and modern day scientific theory to the forefront and sparked twenty state legislatures to consider measures to prohibit the teaching of evolution in public schools. Nearly a century later, the dispute rages on. Twenty states considered anti-evolution measures in both the 1920s …

The Atypical International Status Of The Holy See, Matthew N. Bathon

Vanderbilt Journal of Transnational Law

The Holy See, as personified by the Pope of the Roman Catholic Church, has acquired significant international status over the centuries. In modern times it has not always been clear whether this status arises from the Holy See's status as head of the Church or as ruler of the tiny State of Vatican City. Some view the Holy See's unique international status as an exception to the general rule that only states participate in international affairs. The Holy See has acquired such recognition and authority primarily because of its long-standing involvement in world affairs over the last thousand years. Others …

Accommodation And Equal Liberty, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

How should legislatures respond to requests from religious individuals or institutions for exemptions to generally applicable laws? In Employment Division v. Smith, the Supreme Court held that the Free Exercise Clause does not require legislatures (federal or state) to honor such requests. The question remains whether they should do so on a voluntary basis. This is the problem of permissive accommodation-that is, accommodation of religious liberty as a matter of political discretion rather than constitutional compulsion. Put in the terms of this Symposium, it is the problem of accommodation in the public square. It is not immediately apparent why permissive …

Who Asked You?: The Appropriateness Of U.S. Leadership In Promoting Religious Freedom Worldwide, Nichol J. Starr

Vanderbilt Journal of Transnational Law

Government endorsed and government imposed religious persecution is a growing phenomenon worldwide. From Central America to the Far East, people are arrested, tortured, and even killed for having and expressing their faith, despite the existence of universal covenants expressing acceptance of religious differences as among the most basic of human rights. Seeing the apparent futility of U.N. and other international efforts to curb such persecution, the U.S. Congress in 1998 passed the International Religious Freedom Act. Faith-based religious persecution--and the United States' role in combating it--first took center stage in American politics during the IRFA's passage, and most recently has …

Leveling The Playing Field For Religious "Liberty" In Russia:, Afina Lekhel

Vanderbilt Journal of Transnational Law

The purpose of this Note is to present a more comprehensive framework for analyzing the status of religious human rights in Russia after the enactment of the new law. Following the insights of an eminent scholar on law and religion, Prof. Harold J. Berman, the topic may be evaluated with a view to positive law (Zakon), moral theory (Pravo), and Russian historical experiences. Generally, positive law refers to domestic legal norms. Moral theory also stems primarily from domestic supra-legal sources, but it may connote global human rights principles where a state subscribes to monism, as Russia currently does. Historical contingencies …

Private Religious Choice In German And American Constitutional Law: Government Funding And Government Religious Speech, Ingrid B. Wuerth

Vanderbilt Journal of Transnational Law

We will never face Germany's specific problems of religion and government, arising as they do from its particular history. The sharply contested religion cases from Germany in the late 1990s do, however, point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through …

God, Labor, And The Law: The Pursuit Of Religious Equality In Northern Ireland's Workforce, Jane H. Thorpe

Vanderbilt Journal of Transnational Law

In Northern Ireland, a Catholic man is twice as likely to be unemployed as his Protestant counterpart. This employment differential can be attributed directly to the religious sectarianism that has plagued Northern Ireland for almost 400 years. Traditionally, the Protestant community has used economic rights and employment opportunities to maintain its power and authority over the Catholic community. Resolution of this employment differential would be a key step toward achieving peace and unity in Northern Ireland; however, no progress can be made toward this goal until both communities share economic benefits and hardships. In 1989, the British Parliament passed the …

Defining Religious Tolerance: German Policy Toward The Church Of Scientology, Emily A. Moseley

Vanderbilt Journal of Transnational Law

Members of the Church of Scientology face persecution from the German government and its citizens, raising international concern over the rights of religious minorities in a country determined to overcome its Nazi past. The German Constitution provides many protections for religious freedom and also allows a relatively close relationship between church and state. Historically, the German state has been closely intertwined with the traditionally dominant churches, and today Germans enjoy a great deal of freedom of religion. Until very recently, however, the Federal Constitutional Court has not upheld the similar freedom from religion guaranteed by the "establishment clause" in the …

L'Affaire Des Foulards--Discrimination, Or The Price Of A Secular Public Education System?, Cynthia D. Baines

Vanderbilt Journal of Transnational Law

This Note examines the recent controversy over France's ban against "ostentatious" religious symbols in public schools. The only ostentatious symbol targeted by the French government, however, has been the head scarves worn by Muslim schoolgirls. The author explores the roots of the current ban by examining France's tradition of assimilation of immigrants and its constitutionally mandated secular public education system. The author also compares France's interests in prohibiting head scarves with the Muslim students' interests in practicing their religion. Finally, the author concludes that the French policy of banning head scarves from school is not only impractical, but likely a …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Books Received

GOOD FAITH IN ENGLISH LAW

By J.F. O'Connor

Brookfield, Vermont: Dartmouth Publishing Company, 1990. Pp. 148.

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LAW AND ISLAM IN THE MIDDLE EAST

Edited by Daisy Hilse Dwyer

New York, New York: Bergin & Garvey, 1990. Pp. 168.

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INTERNATIONAL SECURITIES REGULATION

By Norman S. Poser

Boston, Massachusetts: Little, Brown and Company, 1991. Pp. 799.

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COMPARATIVE CONSTITUTIONAL FEDERALISM

Edited by MarkTushnet

Westport, Connecticut: Greenwood Press, 1990. Pp. 157.

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ECONOMIC SANCTIONS AND U.S. TRADE

By Michael P. Melloy

Boston, Massachusetts: Little, Brown and Company, 1990. Pp. 752.

The Parsonage Allowance Exclusion: Past, Present, And Future, Matthew W. Foster

Vanderbilt Law Review

Religious freedom has played a pivotal role in the history and cultural development of the United States.' Religion historically has been considered a fundamental aspect of American culture, resulting in the granting of numerous legal rights and privileges to religious personnel and institutions. These grants stem from the protections in the Bill of Rights and include privileges that, though of undoubted importance, are not known widely and may fail to provoke controversy to the same extent as perceived infringements or endorsements of religion.'

Section 107 of the Internal Revenue Code grants one of the lesser- known privileges. This statute permits …

A Practitioner's Introduction To Saudi Arabian Law, Gali Hagel

Vanderbilt Journal of Transnational Law

There is no Saudi legal code. Although the literature on the Islamic faith is extensive, the only Saudi laws available in the English language are the corporate, tax, and labor regulations. This Note brings together the applicable principles and laws to provide a broad overview of the Saudi legal system: it discusses the way in which Islamic law has evolved in Saudi Arabia, analyzes the major Saudi corporate regulations, and, as an introductory research tool, directs the practitioner to more detailed resources. This Note also gives practical advice to attorneys representing clients doing business in Saudi Arabia, adding needed dimension …

Religion And The Public Schools, P. Raymond Bartholomew

Vanderbilt Law Review

The first amendment to the United States Constitution contains a dual command with respect to governmental involvement with religion: government must "make no law respecting an establishment of religion or prohibiting the free exercise thereof." Although some have insisted that the first amendment requires a strict separation of church and state, the conclusion is inescapable that the two clauses were intended to operate together in harmony. It is apparent, therefore, that the conflicting policies of the "no establishment" clause and the "free exercise" clause must be balanced and reconciled. The United States Supreme Court has held that this balancing effort …