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Michael A Helfand

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Full-Text Articles in Religion Law

Jews And The Culture Wars: Consensus And Dissensus In Jewish Religious Liberty Advocacy, Michael A. Helfand Dec 2018

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

Michael A Helfand

In the recent culture wars, traditionalists and progressives have clashed over dueling conceptions of family, sexuality and religion—manifested in debates over abortion, contraception, and same-sex marriage. Caught in this conflict has been a political and cultural reassessment of religious liberty; a doctrine originally seen as necessary to protect faith commitments from majoritarian persecution, the public salience of religious liberty has waned as it has clashed with the rights of women and LGBT people. And these evolving commitments to dueling rights have triggered religious, political and ideological realignments, generating new alliances across political and faith communities.

In this new environment, both …

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Helfand_From Doctrine To Devotion.Pdf, Michael A. Helfand Dec 2018

Helfand_From Doctrine To Devotion.Pdf, Michael A. Helfand

Michael A Helfand

No abstract provided.

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When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand Dec 2017

When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand

Michael A Helfand

In this chapter, I explore how judges—and, more generally, U.S. courts—deal with legal disputes when they must consider not only laws and facts, but also religion, or maybe even more precisely, theology. Indeed, in a wide range of circumstances, judges are confronted with cases where the outcome in some way or another requires them to issue a decision that is predicated, to varying to degrees, on a theological question upon which there is some debate. While in American law the ostensibly simple answer to this question is simply that the Constitution prohibits courts from adjudicating religious questions, the reality is …

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The Future Of Religious Arbitration In The United States: Looking Through A Pluralist Lens, Michael A. Helfand Dec 2017

The Future Of Religious Arbitration In The United States: Looking Through A Pluralist Lens, Michael A. Helfand

Michael A Helfand

In recent years, religious arbitration has received increasing attention both in the American press and academy. For some, this attention is driven by concern that state enforcement of decisions issued by religious tribunals has the power to undermine the objectives of the U.S. legal system. For others, it is driven by a recognition that religious arbitration enables communities to enhance their process of dispute resolution by ensuring that it comports with shared religious principles and values. And, as is often the case, both perspectives contain important elements of truth. As a paradigmatic legal plurality institution, religious arbitration has the capacity …

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Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand Dec 2017

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

Michael A Helfand

One of the recent fault lines over religious liberty is the scope of protections afforded religiously motivated institutions and corporations. Courts and scholars all seem to agree that such religious institutions deserve some degree of protection. But there remains significant debate over the principles that should guide judicial decisions addressing the circumstances in which religiously motivated institutions should, and in which circumstances they should not, receive the law’s protection.

In this Article, I expound, and defend, my proposed “implied consent” framework for addressing religious institutional claims. Such a framework grounds the authority of religious institutions not in a degree of …

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Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand Dec 2014

Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand

Michael A Helfand

This Essay presented at the Sharia and Halakha in America Conference explores the unique status of religious law as a hybrid concept that simultaneously retains the characteristics of both law and religion. To do so, the Article considers as a case study how courts should evaluate procedural challenges to religious arbitration awards. To respond to such challenges, courts must treat religious law as law when defining the contractually adopted religious procedural rules and treat religious law as religion when reviewing precisely what the religious procedural rules require. On this account, constitutional and arbitration doctrine combine to insulate religious arbitration awards …

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Arbitration's Counter-Narrative: The Religious Arbitration Paradigm, Michael Helfand Dec 2014

Arbitration's Counter-Narrative: The Religious Arbitration Paradigm, Michael Helfand

Michael A Helfand

Arbitration theory and doctrine is dominated by an overarching narrative that conceptualizes arbitration as an alternative to litigation. Litigation, one the one hand, is more procedurally rigorous, but takes longer and costs more; arbitration, on the other hand, is faster and cheaper, but provides fewer procedural safeguards. But notwithstanding these differences, both arbitration and litigation ultimately serve the same purpose: resolving disputes. Indeed, this narrative has been pervasive, becoming entrenched not only in recent Supreme Court decisions, but also garnering support from both arbitration critics and supporters alike.

This Article, however, contends that this exclusive focus on arbitration’s standard narrative …

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Religious Institutionalism, Implied Consent And The Value Of Voluntarism, Michael A. Helfand Dec 2014

Religious Institutionalism, Implied Consent And The Value Of Voluntarism, Michael A. Helfand

Michael A Helfand

Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions—exemplified by recent Supreme Court decisions such as Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby—stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. This Article aims to provide a framework for analyzing the claims of religious institutions by grounding those claims in the principle of voluntarism. On such an account, religious institutions deserve protection because …

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The Challenge Of Co-Religionist Commerce, Michael A. Helfand, Barak D. Richman Dec 2014

The Challenge Of Co-Religionist Commerce, Michael A. Helfand, Barak D. Richman

Michael A Helfand

This Article addresses the rise of “co-religionist commerce” in the United States—that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, co-religionist commerce requires all the legal support necessary to sustain all other commercial relationships. Contracts must be enforced, parties must be protected against torts, and disputes must be reliably adjudicated.

Under current constitutional doctrine, co-religionist commercial agreements must be translated into secular terminology if there are to be judicially enforced. However, religious goods and services often cannot be accurately translated without religious terms …

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Hobby Lobby's Challenge To Officialdom's 'Compelling Interest', Michael Helfand Jul 2014

Hobby Lobby's Challenge To Officialdom's 'Compelling Interest', Michael Helfand

Michael A Helfand

No abstract provided.

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The Murkiness Of The Hobby Lobby Ruling, Michael Helfand Jun 2014

The Murkiness Of The Hobby Lobby Ruling, Michael Helfand

Michael A Helfand

No abstract provided.

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America Doesn't See Its Religious Minorities, Michael Helfand May 2014

America Doesn't See Its Religious Minorities, Michael Helfand

Michael A Helfand

No abstract provided.

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Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand May 2014

Between Law And Religion: Procedural Challenges To Religious Arbitration Awards, Michael Helfand

Michael A Helfand

This Essay presented at the Sharia and Halakha in America Conference explores the unique status of religious law as a hybrid concept that simultaneously retains the characteristics of both law and religion. To do so, the Article considers as a case study how courts should evaluate procedural challenges to religious arbitration awards. To respond to such challenges, courts must treat religious law as law when defining the contractually adopted religious procedural rules and treat religious law as religion when reviewing precisely what the religious procedural rules require. On this account, constitutional and arbitration doctrine combine to insulate religious arbitration awards …

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Panelist, “The Current Clash”, Michael Helfand Apr 2014

Panelist, “The Current Clash”, Michael Helfand

Michael A Helfand

No abstract provided.

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Implied Consent: A Proposal On For-Profit Conscience, Michael Helfand Mar 2014

Implied Consent: A Proposal On For-Profit Conscience, Michael Helfand

Michael A Helfand

No abstract provided.

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Obamacare And Religious Rights In A For-Profit World, Michael Helfand Mar 2014

Obamacare And Religious Rights In A For-Profit World, Michael Helfand

Michael A Helfand

No abstract provided.

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Speaker, "Enforcing Co-Religionist Commerce", Michael Helfand Feb 2014

Speaker, "Enforcing Co-Religionist Commerce", Michael Helfand

Michael A Helfand

No abstract provided.

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Speaker, "Enforcing Co-Religionist Commerce", Michael Helfand Feb 2014

Speaker, "Enforcing Co-Religionist Commerce", Michael Helfand

Michael A Helfand

No abstract provided.

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Panelist, "Who Will Be Exempted From The Affordable Care Act? Hobby Lobby, Little Sisters And The Other Religious Exemption Cases Before The Supreme Court", Michael Helfand Feb 2014

Panelist, "Who Will Be Exempted From The Affordable Care Act? Hobby Lobby, Little Sisters And The Other Religious Exemption Cases Before The Supreme Court", Michael Helfand

Michael A Helfand

No abstract provided.

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Speaker And Panelist, Interfaith Program On “Religion And Politics: Power And Empowerment”, Michael Helfand Jan 2014

Speaker And Panelist, Interfaith Program On “Religion And Politics: Power And Empowerment”, Michael Helfand

Michael A Helfand

No abstract provided.

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Moderator, “Religious Law In U.S. Courts”, Michael Helfand Jan 2014

Moderator, “Religious Law In U.S. Courts”, Michael Helfand

Michael A Helfand

No abstract provided.

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Beit Din's Gap-Filling Function: Using Beit Din To Protect Your Client, Michael A. Helfand Dec 2013

Beit Din's Gap-Filling Function: Using Beit Din To Protect Your Client, Michael A. Helfand

Michael A Helfand

This article considers how rabbinical courts play an important gap-filling role by providing parties with a forum to adjudicate a subset of religious disputes that could not be resolved in court. Under current constitutional doctrine, civil courts cannot adjudicate disputes that turn on religious doctrine and practice. By contrast, rabbinical courts can resolve such disputes--and the decisions of rabbinical courts can then be enforced by civil courts even as those same civil courts could not resolve the dispute in the first instance. In this way, rabbinical courts--like other religious arbitration tribunals--fill a void created by constitutional law, ensuring that parties …

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Speaker, “Enforcing Co-Religionist Commerce”, Michael Helfand Dec 2013

Speaker, “Enforcing Co-Religionist Commerce”, Michael Helfand

Michael A Helfand

No abstract provided.

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Speaker, “On Religion And Money”, Michael Helfand Aug 2013

Speaker, “On Religion And Money”, Michael Helfand

Michael A Helfand

No abstract provided.

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Speaker, “On Religion And Money”, Michael Helfand Aug 2013

Speaker, “On Religion And Money”, Michael Helfand

Michael A Helfand

No abstract provided.

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Speaker, “Between Law And Religion: Procedural Challenges To Religious Arbitration Awards”, Michael Helfand Aug 2013

Speaker, “Between Law And Religion: Procedural Challenges To Religious Arbitration Awards”, Michael Helfand

Michael A Helfand

No abstract provided.

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Between Law And Religion: Procedural Challenges To Religious Arbitration Awards (Video), Michael Helfand Apr 2013

Between Law And Religion: Procedural Challenges To Religious Arbitration Awards (Video), Michael Helfand

Michael A Helfand

No abstract provided.

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Speaker, “Between Law And Religion: Procedural Challenges To Religious Arbitration Awards”, Michael Helfand Apr 2013

Speaker, “Between Law And Religion: Procedural Challenges To Religious Arbitration Awards”, Michael Helfand

Michael A Helfand

No abstract provided.

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Testimony Before The U.S. Commission On Civil Rights, Briefing On Peaceful Coexistence: Reconciling Non-Discrimination Principles With Civil Liberties, Michael A. Helfand Mar 2013

Testimony Before The U.S. Commission On Civil Rights, Briefing On Peaceful Coexistence: Reconciling Non-Discrimination Principles With Civil Liberties, Michael A. Helfand

Michael A Helfand

No abstract provided.

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Symposium Introduction: The Competing Claims Of Law And Religion: Who Should Influence Whom? , Robert F. Cochran Jr., Michael A. Helfand Feb 2013

Symposium Introduction: The Competing Claims Of Law And Religion: Who Should Influence Whom? , Robert F. Cochran Jr., Michael A. Helfand

Michael A Helfand

No abstract provided.

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