Law Commons^™

What Did Those Sixteen Justices Say?, Leslie C. Griffin

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Everyone is finally noticing that the current Supreme Court is changing its jurisprudence on religious freedom. The commentators are finally paying more attention to the fact that seven of the Court's current Justices were raised Catholic. What role have Catholics played in the Supreme Court's history? This article traces their contributions on religious freedom and civil rights, starting with Chief Justice Taney and ending with Justice Barrett.

What Can We Expect Of Law And Religion In 2020, Leslie C. Griffin

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The United States is in a religion-friendly mood-or at least its three branches of government are. The Supreme Court is turning away from its Free Exercise Clause analysis that currently holds that every religious person must obey the law. At the same time, the Court is rejecting its old Establishment Clause analysis that the government cannot practice or support religion. The old model of separation of church and state is gone, replaced by an ever-growing unity between church and state. This Article examines how much union of church and state this Court might establish.

Law, Religion, And Health Care, David Orentlicher

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No abstract provided.

Religious Freedom, Human Rights, And Peaceful Coexistence, Leslie C. Griffin

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At the Second Vatican Council, Fr. John Courtney Murray, S.J., persuaded the Catholic Church to abandon its long, and absolute, opposition to the separation of church and state. He brought a new concept of religious freedom to the Catholic Church. In honor of Murray, this essay looks at several current ways “religious freedom” harms individual rights.

The article describes the ministerial exception, which gives religious organizations the right to dismiss many employment discrimination lawsuits brought against them. It studies women’s right to contraceptive access, which has long been opposed by the Catholic hierarchy, and where employers have earned a legal …

On Health, Law, And Religion, Stacey A. Tovino

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The Supreme Court recently decided a number of cases involving health, law, and religion, including Whole Woman's Health v. Hellerstedt, Zubik v. Burwell, and Burwell v. Hobby Lobby Stores, Inc. These cases were important for understanding constitutional undue burden limitations and the boundaries of religious exercise during the Obama Administration. Unfortunately, the Supreme Court's recent opinions addressing health, law, and religion have little value for many health law professors and most practicing health care attorneys. These individuals, tasked with teaching and applying the thousands of federal and state statutes, regulations, and government guidance documents that address a wide …

Beyond The Basketball Court: How Brittney Griner's In My Skin Illustrates Title Ix's Failure To Protect Lgbt Athletes At Religious Institutions, Leslie C. Griffin

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Symposium: Playing with Pride: LGBT Inclusion in Sports.

Unlike schoolteachers, janitors, coaches, food-service directors, organists, and other workers, professional athletes usually command center stage in society. Their successes and failures loom larger than life. Sometimes their prominent lives highlight themes hidden from public discussion or neglected by the majority. Professional basketball player Brittney Griner's autobiography does just that, by illuminating how "religious freedom" can undermine equality, especially LGBT equality.

Hobby Lobby: The Crafty Case That Threatens Women's Rights And Religious Freedom, Leslie C. Griffin

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Despite the pro-religion rhetoric surrounding it, Hobby Lobby marks a loss of religious freedom. Missing from the majority's opinion is the core concept that religious freedom is necessary to protect the rights of all Americans, and that a religious belief must not be imposed on citizens through the force of law. Any interpretation of the First Amendment or the Religious Freedom Restoration Act ("RFRA")' that imposes one citizen's religious faith upon another must be rejected. This Article defends this non-imposition model of religious freedom and describes why and how Hobby Lobby incorrectly departed from it.

A Word Of Warning From A Woman: Arbitrary, Categorical, And Hidden Religious Exemptions Threaten Lgbt Rights, Leslie C. Griffin

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Religious exemptions have already undermined women’s rights. Now exemptions threaten gays and lesbians. The Constitution protected women’s equality and liberty until religious exemptions eroded them. Today, as gays and lesbians stand on the threshold of marriage equality, religious exemptions threaten to diminish their hard-earned constitutional right. For this reason, I argue it is past time to reject the religious exemption theory of religious liberty, which privileges religion over civil and constitutional rights, in favor of neutral laws that govern all. Religious exemptions pervade American law in numerous ways that are harmful to civil rights.

In this essay, I identify three …

Complicity And Collection: Religious Freedom And Tax, Jennifer Carr

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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 …

Religion And The Restatements, Ian C. Bartrum

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This essay is a contribution to the symposium entitled "Restatement of ..." held at Brooklyn Law School in January of 2013. It examines the role that conceptions of religious liberty play in the various Restatements, and suggests a few places where the ALI might consider expanding its discussion of these principles.

The Curious Case Of Legislative Prayer: Town Of Greece V. Galloway, Ian C. Bartrum

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This essay explores the Supreme Court's decision to reenter the debate over legislative prayers, and the Solicitor General's curious decision to enter the case in defense of Greece, New York's (somewhat dubious) practice. I suggest that the Court's decision, and the Solicitor's brief, can best be understood as part of larger conflict over Establishment Clause doctrine moving forward.

When Fear Rules In Law’S Place: Pseudonymous Litigation As A Response To Systematic Intimidation, Benjamin P. Edwards

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When reprisals and intimidation make certain types of cases too risky for most plaintiffs to file, courts should preserve access to justice by allowing more plaintiffs to proceed pseudonymously. As it stands, courts may be deciding requests to proceed under a pseudonym without understanding the full scope of possible retaliation risks, including that past retaliation may work continuing harm through the stress created by fear.

Unusually heightened retaliation risks may be best exemplified by the nasty reprisals befalling plaintiffs in separation of church and state cases. Although multiple books addressed the issue in the mid-90s, the violent trend has continued …

The Sins Of Hosanna-Tabor, Leslie C. Griffin

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The Supreme Court has lost sight of individual religious freedom. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court for the first time recognized the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Court ruled unanimously that Cheryl Perich, an elementary school teacher who was fired after she tried to return to school from disability leave, could not pursue an antidiscrimination lawsuit against her employer.

This Article criticizes Hosanna-Tabor as a profound misinterpretation of the First Amendment. The Court mistakenly protected religious institutions' …

Book Review: "The Tragedy Of Religious Freedom", Ian C. Bartrum

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Ian Bartrum reviews Marc DeGirolami's The Tragedy of Religious Freedom (Harvard University Press 2013).

The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum

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This paper explores potential theoretical limits on the jurisdictional independence of religious sovereignty in the context of the ministerial exception.

Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum

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This essay is a contribution to the Northwestern University Law Review's colloquy on the ministerial exception, convened following the Supreme Court's decision to hear arguments in Hosanna-Tabor v. EEOC.

The author takes the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. The author offers historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, the author suggests that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.

Fighting The New Wars Of Religion: The Need For A Tolerant First Amendment, Leslie C. Griffin

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No abstract provided.

Review Essay: Religion And Politics 2008-2009: Sometimes You Get What You Pray For, Leslie C. Griffin

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No abstract provided.

Faithful Hermeneutics, Francis J. Mootz Iii

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This article was presented at the Annual Meeting of the Association of American Law Schools on January 9, 2009 as part of a panel on "Scriptural and Constitutional Hermeneutics." The panel was co-sponsored by the Law and Religion Section, Section on Jewish Law, and Section on Islamic Law, and the papers will be published by the Michigan State Law Review.

My article compares legal and religious hermeneutics by exploring the dual nature of what I term "faithful hermeneutics." The ambiguity evoked by this phrase is intentional. On one hand, it suggests an investigation of the relationship between legal and religious …

Faith And Politics In The Post-Secular Age: The Promise Of President Obama, Francis J. Mootz Iii

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If the modern era is properly characterized as the 'age of secularism' - a time when constitutional democracies finally have shed the last vestiges of church authority from the political realm and embrace a rationalist and humanist perspective - then the United States appears to be outside the Western mainstream. In this paper I explore how the relationship between politics and religious faith in the United States might be seen as part of the narrative of secularism that defines most other Western countries, even as the differences in the American experience might suggest an evolution of this narrative. My thesis …

Ketubah, The Marriage Contract Under Jewish Law, And Its Application In Secular Legal Systems, Marketa Trimble

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The article presents ketubah, an institute of Jewish law that is unknown in the current Czech academic literature; it describes its evolution and content, and the manner in which secular countries with large Jewish communities deal with it. Throughout the centuries ketubah achieved a standardized format that has been adjusted to local customs. Additionally, there are attempts to use ketubah to solve the problem of agunah – the problem of parties who have obtained a secular divorce but not a divorce under Jewish law because the other party prevented it. Some legal systems, such as those of the State of …

Review Essay: Religion And Politics 2004-2007, Leslie C. Griffin

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No abstract provided.

Fundamentalism From The Perspective Of Liberal Tolerance, Leslie C. Griffin

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No abstract provided.

Their Own Preposessions: The Establishment Clause 1999-2000, Leslie C. Griffin

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No abstract provided.

Good Catholics Should Be Rawlsian Liberals, Leslie C. Griffin

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No abstract provided.

Review Of Winifred Fallers Sullivan, Paying The Words Extra: Religious Discourse In The Supreme Court Of The United States (1994), Leslie C. Griffin

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No abstract provided.

The Problem Of Dirty Hands, Leslie C. Griffin

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This essay examines what Sartre called the problem of "dirty hands" as it applies to two issues in contemporary Catholic discussions of political morality. Beginning with Michael Walzer's work on dirty hands, the essay next identifies four approaches to this problem characteristic of Christian ethics. These four categories are then applied to analysis of two issues: conflicts of conscience that may confront Catholic politicians as a result of the responsibilities of public office and the church's exclusion of clergy and religious from holding public

The Integration Of Spiritual And Temporal, Leslie C. Griffin

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No abstract provided.