Religion 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.

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 …

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 …

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 …

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 …

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.

The Right To An Exclusively Religious Education – The Ultra-Orthodox Community In Israel In Comparative Perspective, Gila Stopler

Gila Stopler

The ultra-Orthodox Jewish community in Israel has its own separate education system which is funded by the state and in which boys are given an exclusively religious education with almost no exposure to secular subjects or to civic education. At the same time that the Israeli Supreme Court was scheduled to rule that the state may not continue to fund ultra-Orthodox private schools that do not teach the national core curriculum the Israeli parliament passed the Unique Cultural Educational Institutions Act which upholds the right of the ultra–Orthodox community to give their boys an exclusively religious education funded by the …

The Challenge Of Strong Religion In The Liberal State, Gila Stopler

Gila Stopler

Liberal states are struggling to find ways to deal with strong religion in a manner that would enable them to give due respect to the religious beliefs of citizens while at the same time to adhere to core liberal values such as respect for human rights and avoidance of undue entanglement of religious and state authority. One type of solution that has been offered is granting authority and autonomy to private religious tribunals, for example in the area of religious family law. Another type of solution is creating a direct link between state law and some religious obligations, as was …

Religious Victory Over The Affordable Care Act? Possible Recourse For The Employee Of The Religious Employer, Jacqueline Prats

Jacqueline M Prats

In 2012, the Supreme Court upheld the Patient Protection and Affordable Care Act (ACA). Even as the Court deliberated, a number of for-profit employers prepared to challenge the law—not the Act as a whole, but a specific part: the requirement that insurance plans cover contraceptives for women, free of co-pay or other cost-sharing. Although their companies were secular, these business owners claimed that the “contraception mandate” violated not only their religious beliefs, but also those of their companies. They challenged the ACA under both the Free Exercise Clause of the First Amendment and a federal statute called the Religious Freedom …

"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 …

Ideological Voting Applied To The School Desegregation Cases In The Federal Courts Of Appeals From The 1960’S And 70’S, Joe Custer

Joe Custer

This paper considers a research suggestion from Cass Sunstein to analyze segregation cases from the 1960's and 1970's and whether three hypothesis he projected in the article "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation," 90 Va. L. Rev. 301 (2004), involving various models of judicial ideology, would pertain. My paper considers Sunstein’s three hypotheses in addition to other judicial ideologies to try to empirically determine what was influencing Federal Court of Appeals Judges in regard to Civil Rights issues, specifically school desegregation, in the 1960’s and 1970’s.

Are Same-Sex Marriages Really A Threat To Religious Liberty?, Eric Alan Isaacson

Eric Alan Isaacson

Some have contended that same-sex couples' marriages pose a grave danger to the religious liberty of social conservatives whose faith traditions do not bless same-sex unions. Those who oppose recognizing same-sex couples' right to marry have even contended that their clergy and churches might be subject to hate-crime prosecutions and loss of tax-exempt status if same-sex couples may lawfully marriage. This article seeks to answer those objections, pointing out that many limitations on religious marriages -- such as Roman Catholic doctrine barring remarriage by those who are civilly divorced -- parallel religious rules similarly limiting or withholding recognition from same-sex …

Unanswered Questions Of A Minority People In International Law: A Comparative Study Between Southern Cameroons & South Sudan, Bernard Sama Mr

Bernard Sama

The month July of 2011 marked the birth of another nation in the World. The distressful journey of a minority people under the watchful eyes of the international community finally paid off with a new nation called the South Sudan . As I watched the South Sudanese celebrate independence on 9 July 2011, I was filled with joy as though they have finally landed. On a promising note, I read the UN Secretary General Ban Ki-moon saying “[t]ogether, we welcome the Republic of South Sudan to the community of nations. Together, we affirm our commitment to helping it meet its …

El Derecho De Sucesiones Se Debe Atemperar A Los Cambios De La Sociedad Del Siglo Xxi, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Probability Thresholds As Deontological Constraints In Global Constitutionalism, Gila Stopler, Moshe Cohen-Eliya

Gila Stopler

This Article calls for the re-introduction of probability tests—such as the abandoned American “clear and present danger” or the Israeli “near certainty” test—and for their integration into contemporary models of rights adjudication in global constitutionalism. This stance is supported, inter alia, by psychological research on the cognitive bias of “probability neglect.” Both the American strict scrutiny test, which focuses on a rigorous means-ends analysis, and the highly influential German proportionality test, which centers on the balancing of rights and interests, fail to properly ensure the priority of rights. The Article contends that it is important to integrate a probability requirement …

Section 5 Of The Voting Rights Act And Its Place In Post-Racial America, Enbar Toledano

Enbar Toledano

The Fifteenth Amendment purported to withdraw race and color from the calculus of suffrage. Instead, it gave rise to an era of creative exclusion in which Southern states erected one barrier after another and Congress floundered in its attempts to secure the black vote it had promised. After ninety-five years, progress at last seemed possible with the introduction of the Voting Rights Act of 1965 (VRA), an echo of the Fifteenth Amendment fitted with shiny, new teeth. Section 5 of the VRA reversed the inertia of discrimination by requiring states with a demonstrated history of employing disfranchising voting practices to …

Rights In Immigration: The Veil As A Test Case, Gila Stopler

Gila Stopler

Immigration often involves the migration of people of specific cultural and religious background to countries in which the predominant cultural and religious background is quite different. This may result in attempts by receiving countries to restrict the new immigrants' cultural and religious practices. The paper uses the debate surrounding the wearing of the veil in Europe as a test case for the way in which recognition rights may be affected by the process of immigration. First, the paper maintains that the balance of rights and interests involved in conflicts over immigrants' rights changes along the process of immigration, and divides …

R (On The Application Of E) (Respondent) V Governing Body Of Jfs And The Admissions Appeal Panel Of Jfs (Appellants) And Others (Case Note) [2009] Uksc 15, Reuven (Ruvi) Ziegler

Dr. Reuven (Ruvi) Ziegler

This case-note offers comparative perspectives on the UK Supreme Court’s judgment in the JFS case (alleged racially discriminatory school admissions policy) and the Israeli Supreme Court’s judgment in the Emanuel Haredi school case (alleged Ashkenazi/Sephardi segregation arrangements).

International Human Rights Law And Co-Parent Adoption, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Children would benefit substantially if governments legally recognized same sex marriages and parenting. This article analyzes international human rights law, co-parent adoption, and the recognition of gay and lesbian families. It addresses civil marriage and adoption challenges for same sex families and assesses European Court of Human Rights jurisprudence relating to same-sex adoption. This article considers the international community's efforts to implement the best interest of the child standard concluding that recognition of same sex families is in the best interest of the child and should be facilitated in a timely manner by jurisdictions at all levels.

Denominations And Denominators: Applying Lucas V South Carolina Coastal Council To Resolve Rluipa "Substantial Burden On Religious Land Use" Cases, Elliott Joh

Elliott Joh

The free exercise of religion is a well-protected aspect of American life. Freedom of speech is sometimes curtailed during wartime, and the exclusionary rule prompts hostility when used in conjunction with the Fourth Amendment, but it is rare to hear anyone argue that the freedom of worship should be so abrogated. Discrimination on the basis of religion, however, is not so uncommon, and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) was enacted to combat such discrimination by municipalities and local zoning authorities. Congress’s hope in enacting this legislation was that churches, mosques, and synagogues have a …

On Conceptual Dichotomies And Social Oppression, Gila Stopler, Dana Freibach Heifetz

Gila Stopler

This article aims to expose the philosophical and cultural mechanisms, which allow some forms of western religion (in this case mainstream Christianity) to join hands with western capitalism in the oppression of women and of the needy. Focusing on the example of the US, this article claims that both mainstream Christian religion and capitalism perpetuate and entrench discrimination against women and the oppression of the needy through the use of the cultural/philosophical dichotomy between love and justice and its corollary dichotomy between private and public. Against this background, the second part of the article examines several notions of love and …

La Cesión De Derechos En El Código Civil Peruano, Edward Ivan Cueva

Edward Ivan Cueva

La Cesión de Derechos en el Código Civil Peruano

Algunos Apuntes En Torno A La Prescripción Extintiva Y La Caducidad, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Gender Construction And The Limits Of Liberal Equality, Gila Stopler

Gila Stopler

This article will suggest a possible answer to the puzzling question of why despite the egalitarian principles upon which Western liberal democracies are allegedly predicated sex discrimination in these societies persists and sex discrimination on the basis of religion and culture is most often even countenanced and protected. I argue that the gendered structure of liberal society and of the liberal self, within which we all operate, serve as a framework within which different roles, different obligations and different paths for men and for women, in both liberal and non-liberal societies, seem natural and inevitable and therefore in no need …

The Liberal Bind: The Conflict Between Women’S Rights And Patriarchal Religion In The Liberal State, Gila Stopler

Gila Stopler

Surveying the relationship between religion and the state in the US and in European liberal democracies the article distinguishes between five different facets of the relationship between religion and the state in liberal democracies - institutional differentiation between religion and the state, strong protection of religious liberty, the involvement of religion in politics, the extent of religious involvement in education and social services, and the levels of religious belief of individuals in society - and discusses how each of them affects women’s right to equality. The article argues that contrary to common assumptions the relationship between patriarchal religion and the …

Manual De Derecho Procesal Civil, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.