Law Commons^™

Jews And The Culture Wars: Consensus And Dissensus In Jewish Religious Liberty Advocacy, Michael A. Helfand

Michael A Helfand

Social Contract Neutrality And The Religion Clauses Of The Federal Constitution, Gregory S. Sergienko

Greg Sergienko

'Neutrality' has become the slogan that the Supreme Court uses for judging all claims of freedom of religion whether under the Establishment Clause or the Free Exercise Clause. However, the word 'neutrality' conceals the Court's inconsistent use of the concept. Thus, in Rosenberger v. Rectors of the University of Virginia, the recent debate about funding for religious publications, both the majority and the dissent asserted that only their approach was truly neutral. This inconsistency in the meaning of neutrality in the religion clauses is merely part of a general inconsistency in the Court's treatment of the religion clauses. Some of …

Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand

Michael A Helfand

Eclecticism, Nelson Tebbe

Nelson Tebbe

This short piece comments on Kent Greenawalt's new book, Religion and the Constitution: Establishment and Fairness. It argues that although Greenawalt's eclectic approach carries certain obvious costs, his theory cannot be evaluated without comparing its advantages and disadvantages to those of its competitors. It concludes by giving some sense of what that comparative calculus might look like.

Rlupia And The Limits Of Religious Institutionalism, Zachary A. Bray

Zachary Bray

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Religious Accommodations And – And Among – Civil Rights: Separation, Toleration, And Accommodation, Richard W. Garnett

Richard W Garnett

This paper expands on a presentation at a recent conference, held at Harvard Law School, on the topic of “Religious Accommodations in the Age of Civil Rights.” In it, I emphasize that the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in …

The Worms And The Octopus: Religious Freedom, Pluralism, And Conservatism, Richard Garnett

Richard W Garnett

formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and …

The Pluralistic Foundations Of The Religion Clauses, Steven Shiffrin

Steven H. Shiffrin

Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. The United States Supreme Court has argued that in the absence of discrimination against religion (or the presence of other constitutional values), there is no violation of the Free Exercise Clause when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in …

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 …

Religious Liberty: Between Strategy And Telos, Kristine Kalanges

Kristine Kalanges

It has become woefully commonplace to observe that threats to religious freedom are increasing in the United States and globally. In response, scholars, human rights activists, and policymakers are engaging courts, political institutions, and the public square to make the case that religious liberty merits robust protection. Historically, these arguments were crafted primarily in theological and political terms. But as the number of those disclaiming religious affiliation rises and the political climate becomes ever more gridlocked, the search is on for new ways to make religious freedom relevant to state leaders and salable to a diverse public. Thus, during a …

Taking God Seriously: Why Religion Is Essential To The Defense Of Religious Human Rights, Kristine Kalanges

Kristine Kalanges

The immediate challenge is to transform the “difficult choice” between religious liberty as a universal human right and peaceful coexistence of diverse legal political cultures. The development of a world legal tradition is an important component of that transformation. World legal tradition emphasizes the comparative moral and historical bases of law in the subject spheres of study. Its integrative jurisprudence necessitates consideration of the contributions made by religion, politics, and historical circumstance to the evolution of law. While the elements of a world legal tradition are to be found in the intellectual and institutional resources of the Western and Islamic …

Talking Points On Report Of The Special Rapporteur On Freedom Of Religion Or Belief, Kristine Kalanges

Kristine Kalanges

To support the Holy See in its work at the United Nations, the Caritas in Veritate Foundation, in Geneva, Switzerland, and the Center for Catholic Studies at the University of St. Thomas in Minnesota, collaborated in preparing reports on current issues discussed at the United Nations. The Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy, a joint venture between the Center for Catholic Studies and the School of Law at the University of St. Thomas, supports this collaboration, helps identify experts to draft these reports and, with the authors' permission, makes them available on its website. In …

Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk

Michael Heise

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key …

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 …

The Contraception Mandate And The Forgotten Constitutional Question, Zoe D. Robinson

Zoe Robinson

Rick Garnett Publishes Op-Ed Piece In La Times "The Righteousness In Hobby Lobby's Cause", Richard Garnett

Richard W Garnett

Rick Garnett's op-ed in LA Times on the HHS mandate and religious liberty cases before the Supreme Court.

'The Freedom Of The Church': (Towards) An Exposition, Translation, And Defense, Richard W. Garnett

Richard W Garnett

This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component …

Judicial Enforcement Of The Establishment Clause, Richard W. Garnett

Richard W Garnett

This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.

Religious Liberties: The International Religious Freedom Act, Richard W. Garnett, Thomas F. Farr, T. Jeremy Gunn, William L. Saunders

Richard W Garnett

No abstract provided.

"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell

Frederick Mark Gedicks

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked Establishment Clause limits on such exemptions. The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion—that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …

Religious Freedom In The Jurisprudence Of The Egyptian And European Court Of Human Rights, Saba Mahmood, Peter G. Danchin

Peter G. Danchin

No abstract provided.

The Naked Private Square, Ronald J. Colombo

Ronald J Colombo

In the latter half of the twentieth century, America witnessed the construction of a “wall of separation” between religion and the public square. What had once been commonplace (such as prayer in public schools, and religious symbols on public property) had suddenly become verboten. This phenomenon is well known and has been well studied.

Less well known (and less well studied) has been the parallel phenomenon of religion’s expulsion from the private square. Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable …

Matters Of Conscience: Lessons For Same-Sex Marriage From The Healthcase Context, Robin Fretwell Wilson

Robin Fretwell Wilson

None available.

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

Family Law's Challenge To Religious Liberty, Raymond O'Brien

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …