Religion Law Commons^™

An Unconstitutional Stereotype: Catholic Schools As Pervasively Sectarian, Gerard V. Bradley

Journal Articles

The Supreme Court first held public assistance to religious schools unconstitutional in 1971 in Lemon v. Kurtzman. From then until now the concept of “pervasively sectarian” has played a central role in “parochaid” jurisprudence; every holding against “direct” aid has rested upon it as a necessary premise. “Pervasively sectarian” refers to the assertedly religious (“sectarian”) character of the entire curriculum at parochial schools. Religion, it is said, so permeates the whole educational program that “direct aid” to any aspect of that program inescapably aids religion itself. And that, it is said, violates the Establishment Clause. Because aid statutes typically aim …

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Journal Articles

As this Essay goes to press, the Supreme Court is considering whether Ohio's school-choice program violates the First Amendment to the United States Constitution. In my view, the Ohio program is sound public policy, and it is consistent with the Justices' present understanding of the Establishment Clause. I also believe that the Court will and should permit this experiment, and our conversations about its merits, to continue. The purpose of this Essay, though, is not to predict or evaluate ex ante the Court's decision. Instead, my primary aim is to suggest and then sketch a few broad themes that--once the …

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, …

A Quiet Faith? Taxes, Politics, And The Privatization Of Religion, Richard W. Garnett

Journal Articles

The government exempts religious associations from taxation and, in return, restricts their putatively political expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well-suited nor to be trusted with this kind of line-drawing. What's more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion - i.e., that it is a private matter - and of its proper place - i.e., in the private sphere, not …

Common Schools And The Common Good: Reflections On The School-Choice Debate, Richard W. Garnett

Journal Articles

Thank you very much for this timely and important discussion on school choice, religious faith, and the public good.

First things first—Steven Green is right: The Cleveland school-voucher case is headed for the Supreme Court. And I am afraid that Mr. Green is also correct when he observes that the question whether the First Amendment permits States to experiment with meaningful choice-based education reform will likely turn on Justice O'Connor's fine-tuned aesthetic reactions to the minutiae of Ohio's school-choice experiment.

Putting aside for now the particulars of the Cleveland case, though, I would like to propose for your consideration a …

Taking Pierce Seriously: The Family, Religious Education, And Harm To Children, Richard W. Garnett

Journal Articles

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious …

Law And Theology: Reflections On What It Means To Be Human From A Franciscan Perspective, John J. Coughlin

Journal Articles

When I was first asked in March of 2000 to speak at this conference on the topic of "law and theology," many thoughts crossed my mind. I could address: the role of religion in American political life, euthanasia, medieval canon law and theology, the death penalty, the Jewish origins of the Pauline perspective on law, the ethics of DNA experimentation, Muslim theology and law, the relation between Marxist political theory and Christian eschatology, or several other "light" issues. Upon second thought, perhaps a more straight-forward approach would be beneficial. I might review the plan of salvation history, and then as …

Catholic Health Care And The Diocesan Bishop, John J. Coughlin

Journal Articles

Over the course of the last decade, the provision of health care in the United States has been undergoing a radical transformation. The days when an insurer, such as Blue Cross and Blue Shield, paid a standard fee to a physician who provided a specified service to an individual patient are passing rapidly. This fee-for-service concept, which characterized American health care from the end of World War II until the 1990s, is being supplanted by a variety of arrangements that fall under the general rubric of "managed care." The fundamental approach of managed care is to provide the patient with …

What O'Clock I Say: Juridical Epistemics And The Magisterium Of The Church, Robert E. Rodes

Journal Articles

Legal pronouncements to the effect that such and such is the case can be divided into three categories, which the paper calls normative, constitutive, and epistemic. The paper defines these three legal categories, explores examples of each of in the law of the state, and then examines church pronouncements under the same categories to see what light the analogy of secular law can shed on them. The Church's assertions of authority regarding faith and morals are epistemic in nature. Epistemic pronouncements by authority, whether in Church or state, are binding on anyone who is not better informed than the author, …

The Primacy Of Political Actors In Accommodation Of Religion, William K. Kelley

Journal Articles

This article focuses on the relationship between freedom of religion and the norm against non-establishment of religion in the context of government efforts to accommodate religious practices. It analyzes First Amendment doctrine in this area, and concludes that the Supreme Court has consistently been generous in permitting accommodations of religion when they are the product of judicial decisions; in other words, at least until recently the Court has been open to mandatory accommodations so long as they are ordered by judges. By contrast, the Court has long been suspicious of - and far from generous in permitting - accommodations as …

From Yoder To Yoda: Traditional, Modern And Postmodern Models Of Religion In U.S. Constitutional Law, Rebecca Redwood French

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No abstract provided.

Book Review, Mark C. Modak-Truran

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This book not only represents the culmination of Michael J. Perry’s thoughtful and important deliberation (two other books and numerous articles) on the proper relation of morality (especially religious morality) to politics and law, but it also presents arguments that are very accessible to those in religious studies, philosophy, political science, and law.

Faith And The Liberal Legal Order: An Appreciative Response To Shaffer And The Symbolism Workshop, Elizabeth B. Mensch

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No abstract provided.

On The Practical Meaning Of Secularism, John Finnis

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The secularism I consider in this Article is a public reality, the secularism which shapes public debate, deliberation, dispositions, and action, and dominates our education and culture. I shall be considering the ideas, not the people; and people are often less consistent, and better, than their theories. There is no profit in estimating whether secularism's dominance now is greater than in Plato's Athens or lesser than in Stalin's Leningrad. There is certainly a rich field for historical investigation of the particular and often peculiar forms taken by western secularism under the influence of the faith it supplants. But I shall …

The Religious Dimension Of Judicial Decision Making And The Defacto Disestablishment, Mark C. Modak-Truran

Journal Articles

Despite the de facto disestablishment of religion, I will try to illustrate the centrality of religion as a resource for understanding judicial decision making. The central question for this inquiry is: What, if any, is the role of religious beliefs in judicial decision making?

Lamas, Oracles, Channels, And The Law: Reconsidering Religion And Social Theory, Rebecca Redwood French

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No abstract provided.

Faith Tends To Subvert Legal Order, Thomas L. Shaffer

Journal Articles

Two old friends and colleagues died in the spring of 1997. Both share with me a Baptist boyhood and a Roman Catholic middle age. Both showed me that the relevance of religion to a lawyer's work is best approached with believers' irony.

Frank Booker, descendant of Cherokee Indians, Missouri farmers, railroaders, and Baptist ministers, taught law at Stetson and then Notre Dame, with a style all his own and with a steady eye on how important the law is. After his funeral, one of his students remembered for me a day in Frank's first-year torts class. They were several weeks …

Habermas’S Discourse Theory Of Law And The Relationship Between Law And Religion, Mark C. Modak-Truran

Journal Articles

The relationship between law and religion has become the subject of a sustained and robust debate. However, unlike earlier theological attempts to ground law in religion or the Divine, participants in the modem debate rarely, if ever, argue for a theological or religious legitimation of law. Either implicitly or explicitly, there appears to be a modem consensus among legal scholars and philosophers that the world has been disenchanted. The world can no longer be viewed as an integrated, meaningful whole under a comprehensive religious or metaphysical worldview, and law can no longer be legitimized by its religious or metaphysical foundations. …

The Cosmology Of Law In Buddhist Tibet, Rebecca Redwood French

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No abstract provided.

An Overview Of The Scholarship In Law And Religion Of Judge John T. Noonan, Jr., Robert E. Rodes

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I first met John Noonan at a Law Review dinner when I was a year or so out of law school and he was a third year student. Chance placed us at the same table, and the conversation-naturally-proved to be more interesting than the speeches.

I am honored, indeed, blessed, to have been exposed to that witness for so many decades, and deeply grateful for the opportunity to come here on this occasion and bear my own witness in return.

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, …

The Church And The Law, Thomas L. Shaffer

Journal Articles

The image I want to use to talk about the church in the state, from a Christian lawyer's point of view, is in two of the novels of the late theological storyteller Walker Percy. We Percy readers first saw the image in Love in the Ruins. Percy's sub-title for that novel was "The Adventures of a Bad Catholic at a Time Near the End of the World." His setting is the not-too-distant future in North America. Social climate and civil discourse are even worse than they are now. Percy's central figure, Dr. Thomas More, the bad Catholic, and a few …

Islamic International Law And Public International Law: Separate Expressions Of World Order, David A. Westbrook

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No abstract provided.

How I Changed My Mind, Thomas L. Shaffer

Journal Articles

My own changes of mind are not unique. I am one of a small group of law teachers who have, over the last thirty years, become clearer in formulating an Hebraic legal ethic. We are a minority who have become bolder. We owe such courage as we have located for that to modern pioneers, most notably Harold Berman, and, more lately, Emily Hartigan. What has changed most for us has been the clarity of our public witness; the substance all along has been old-time religion. When I say "clarity" I mean that we have come to see this substance in …

Erastian And Sectarian Arguments In Religiously Affiliated American Law Schools, Thomas L. Shaffer

Journal Articles

The legal education establishment in the United States some time ago gave up discouraging religiously affiliated law schools. Its support for them now, however, is conditioned on their approaching religious affiliation in a manner that is seen as consistent with the dominant American attitude toward religion—that religion is a private affair and that public moral issues, including issues of jurisprudence and professional ethics, are secular issues, to be talked about in secular language, pursuant to secular principles, and in a secular style.

I begin here by considering the requirement of the American Bar Association, in its Standards for the Approval …

The Politics Of Virtue: Animals, Theology, And Abortion, Elizabeth B. Boyer, Alan Freeman

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No abstract provided.

Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley

Journal Articles

From all the talk about our religious pluralism—how extensive, indelible, inarbitrable it is—one would expect that establishing one definition of religious liberty would be the mother of all civic disturbances. Wrong. We have a common definition of religious liberty. I can demonstrate our agreement with one exhibit: the immensely broad based denunciation of the 1990 Supreme Court decision, Employment Division v. Smith. Two counsellors at a drug rehabilitation center (Alfred Smith and Galen Black) appealed Oregon’s denial of unemployment benefits. Oregon cited the “misconduct” that led to their discharges. Their “misconduct” consisted of using the hallucinogenic drug peyote. Peyote …

Pluralist Establishment: Reflections On The English Experience, Robert E. Rodes

Journal Articles

England's historical and current synthesis of Church and State differs greatly from other European and American experiences. It contrasts sharply with the path taken by most states, which chose to cope with religious pluralism by privatizing religion and by trying to base public life on secular views of human nature. This paper reviews the unique inception, and continuance, of the church-state throughout English history. It also reviews the unique manner in which England chose to deal with religious pluralism while maintaining its established church. After reviewing the English experience of establishment of religion, this paper concludes that the total wall …

Forum Juridicum: Church Autonomy In The Constitutional Order - The End Of Church And State?, Gerard V. Bradley

Journal Articles

"Separation of church and state" is right up there with Mom, apple pie, and baseball in American iconography. If everyone agrees on separation of church and state, why does the relationship between religion and public life so vex, excite, and confound us? Part of the reason is that church-state separation, although it is the historical achievement of societies decisively shaped by a Christianity that was itself decisively shaped by Judaism, is a commodious concept.

But "separation of church and state" is not contentless, and our conclusive agreement on it, I submit, provides a valuable common frame of reference in an …

Religion, Revival, And The Ruling Class: A Critical History Of Trinity Church, Elizabeth B. Mensch

Journal Articles

No abstract provided.