Religion Law Commons^™

Untangling Entanglement, Stephanie H. Barclay

Journal Articles

The Court has increasingly signaled its interest in taking a more historical approach to the Establishment Clause. And in its recent American Legion decision, the Supreme Court strongly suggested that the three-prong Lemon test is essentially dead letter. Such a result would make sense for the first two prongs of the Lemon test about secular purpose and the effects. Many scholars have observed that these aspects of the prong are judicial creations far afield of the Establishment Clause history. But what of the entanglement prong of the test? If we rejected all applications of this prong of the analysis, would …

Irreconcilable Differences? Whole Woman’S Health, Gonzales, And Justice Kennedy’S Vision Of American Abortion Jurisprudence, O. Carter Snead, Laura Wolk

Journal Articles

A law is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."' Twenty-five years have elapsed since a plurality of the Supreme Court articulated this undue burden standard in Planned Parenthood of Southeastern Pennsylvania v. Casey, yet its contours remain elusive. Notably, two current members of the Court-Justice Breyer and Justice Kennedy-seem to fundamentally differ in their understanding of what Casey requires and permits. In Gonzales v. Carhart, Justice Kennedy emphasized a wide range of permissible state interests implicated by abortion and indicated …

Legal Ethics And Jurisprudence From Within Religious Congregations, Thomas L. Shaffer

Journal Articles

The Rabbis of the Talmud were a community for moral discernment—a community commissioned by God to interpret the Word of God. Their story is theology. Michael Scanlon, a modem Roman Catholic thinker, assumes such a theology and adds anthropology.

The Rabbis assume and Scanlon describes a community for ethical discernment. It is a perception—somewhat empirical, somewhat theological—that is important and neglected for lawyers in academic jurisprudence and in religious legal ethics. My argument here is that what lawyers should do about "ethical dilemmas" in professional practice can be discerned in the sort of community the Talmud describes, and Scanlon describes, …

Pilgrim Law, Robert E. Rodes

Journal Articles

A people's laws are deeply imbedded in its culture. They embody its collective moral reflection, its common understanding of the terms on which human beings are to live together, its customs, its historical experience, and its aspirations for the future. It is perhaps to be expected that Americans should enshrine their constitutional documents, build courthouses like temples, deploy their laws with ruthless practicality, and not take kindly to the suggestion that their laws are less practical than they think. Or that Italians should maintain a legal system like an old palazzo, with imposing staircases you can lose you. breath climbing, …

Have We Lost The Ball?, Clarence Emmett Manion

Journal Articles

Americans are devoted to a wide variety of ball games. In every season of the year millions of us are continually congregating to observe the swift, skillfully directed flight of baseballs, footballs, basket balls and golf balls. In all of these contests and exhibitions the existence, nature and condition of the involved ball 'has become a remote secondary consideration. The ball is taken for granted. We are concerned exclusively with the skill and coordination of the players and their intelligent observance of the rules. Nevertheless, in all of these games it must be admitted that "the ball" is the thing …

Religion And American Law, Clarence Emmett Manion

Journal Articles

This article discusses the relationship of law and religion in American culture. It constructs a theory of "American Faith", a theory that underlies all of American jurisprudence. This theory includes the propositions that there is a God, that all men are equal in God's sight even if not in front of mortal men, and that the American Revolution was a "revolution of believers." It concludes that religious liberty is our one and only true freedom and by holding onto it we can support human rights and freedom.