Religion Law Commons^™

Contract Law Should Be Faith Neutral: Reverse Entanglement Would Be Stranglement For Religious Arbitration, Michael J. Broyde, Alexa J. Windsor

Faculty Articles

The first section of this Article will outline the ways in which communities—religious and other groups, including the LGBTQ+ community—have used and continue to use private law to achieve meaningful dispute resolution. By diminishing the role of civil courts to review arbitrations, parties may tailor their resolutions to prioritize community values that may be misaligned with secular society. Outside of historical religious usage, private law offers a field ripe for jurisprudential growth. Through alternative dispute resolution, affinity-based minority groups can pave an avenue towards justice which accurately reflects the unique values of their lived experiences.

The second section will provide …

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

Scholarly Works

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.

The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine

Scholarly Works

No abstract provided.

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Theses

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

Religious Alternative Dispute Resolution In Israel And Other Nations With State-Sponsored Religious Courts: Crafting A More Efficient And Better Relationship Between Rabbinical Courts And Arbitration Law In Israel, Michael J. Broyde, Ezra Ives

Faculty Articles

This paper proposes the expansion of both private and public options regarding religious arbitration in Israel, broadening both the choice of law and the choice of forum available to Israeli citizens in cases of either commercial law or issues of status (such as divorce, marriage, and conversion). The current law in Israel prohibits citizens from adjudicating their monetary disputes in state religious courts and treats private religious courts as no different from any other arbitration tribunal, precluding these private religious courts from marriage, divorce and conversion matters. We propose that both of these restrictions be lifted, while the role of …

Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine

Scholarly Works

For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, …

Reimagining The Death Penalty: Targeting Christians, Conservatives, Spearit

Articles

This Article is an interdisciplinary response to an entrenched legal and cultural problem. It incorporates legal analysis, religious study and the anthropological notion of “culture work” to consider death penalty abolitionism and prospects for abolishing the death penalty in the United States. The Article argues that abolitionists must reimagine their audiences and repackage their message for broader social consumption, particularly for Christian and conservative audiences. Even though abolitionists are characterized by some as “bleeding heart” liberals, this is not an accurate portrayal of how the death penalty maps across the political spectrum. Abolitionists must learn that conservatives are potential allies …

Administrative Power And Religious Liberty At The Supreme Court, Mark L. Rienzi

Scholarly Articles

The Supreme Court has recently seen an increase in the number of religious exercise cases in which the conflict was caused by an act of administrative power, rather than an act of legislative power. There are probably several reasons for this increase, including the growth, size, and flexibility of the administrative state, political convenience, and the fact that administrators tend to be specialists who may be unaware of or undervalue competing interests like religious liberty.

While the sheer size, reach, flexibility, and specialization of the administrative state means we will likely continue to see more religious exercise conflicts caused by …

Religious Courts In Secular Jurisdictions: How Jewish And Islamic Courts Adapt To Societal And Legal Norms, Rabea Benhalim

Publications

At first glance, religious courts, especially Sharia courts, seem incompatible with secular, democratic societies. Nevertheless, Jewish and Islamic courts operate in countries like the United States, England, and Israel. Scholarship on these religious courts has primarily focused on whether such religious legal pluralism promotes the value of religious freedom, and if so, whether these secular legal systems should accommodate the continued existence of these courts. This article shifts the inquiry to determine whether religious courts in these environments accommodate litigants’ popular opinions and the secular, procedural, and substantive justice norms of the country in which they are located. This article …

Jewish Honor Courts: Revenge, Retribution, And Reconciliation In Europe And Israel After The Holocaust, David Abraham

Articles

No abstract provided.

Lost & Found: Order In The Court -- The Party Game, Owen Gottlieb, Ian Schreiber

Presentations and other scholarship

Lost & Found is a strategy card-to-mobile game series that teaches medieval religious legal systems with attention to period accuracy and cultural and historical context.

The Lost & Found games project seeks to expand the discourse around religious legal systems, to enrich public conversations in a variety of communities, and to promote greater understanding of the religious traditions that build the fabric of the United States. Comparative religious literacy can build bridges between and within communities and prepare learners to be responsible citizens in our pluralist democracy.

The second game in the series, Lost & Found: Order in the Court …

Religious Freedom And (Other) Civil Liberties: Is There A Middle Ground?, Abner S. Greene

Faculty Scholarship

There appears to be an intractable debate between those who favor religious accommodations and those who favor civil liberties such as abortion rights and equality rights for same-sex couples. Many take firm positions of truth about one matter or the other. Here, I sketch a middle ground, continuing my endorsement of a robust normative or value pluralism. I canvass some arguments for this position, while also describing and critiquing some works of intellectual history that seem too wedded to one teleological posture or another. Despite my support for the Religious Freedom Restoration Act, I critique the Court’s Hobby Lobby ruling, …

Veiled Women In The American Courtroom: Is The Niqab A Barrier To Justice?, Anita L. Allen

All Faculty Scholarship

U.S. courts and policy-makers have recently authorized laws and practices that interfere with the wearing of religious modesty attire that conceals the hair or face in contexts such as courtroom testimony or driver’s license issuance. For example, in response to a court’s dismissal of the case of a woman who refused to remove her niqab in the courtroom, the Michigan Supreme Court decided that judges can exercise “reasonable control” over the appearance of courtroom parties. But what degree of control over religious attire is reasonable? The Constitution will not allow a blanket niqab removal policy based on any of the …

Muslim Radicalization In Prison: Responding With Sound Penal Policy Or The Sound Of Alarm?, Spearit

Articles

This article assesses radicalization among Muslim prisoners in the post- 9/11 era by analysis of ethnographic data in light of the available research. There are two primary motives that drive this inquiry: (1) to determine whether prisons are “fertile soil for jihad” as claimed, and (2) to the extent prisoner radicalization does occur, determine the ideological motives. In the last decade, politicians and analysts have clamored about the “danger” and “threat” posed by Islam in American prisons. Yet these characterizations sit in tension with several decades of sustained Islamic outreach in prison to support inmate rehabilitation and re-entry. They also …

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Working Paper Series

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is its role …

“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Mckinley Brennan

Working Paper Series

John Locke understood human happiness to amount to the removal of "uneasiness." This paper argues that,to the extent that the United States is a nation dedicated to "the pursuit of happiness" understood as the removal of "uneasiness," same-sex unions or marriages should be given legal recognition. While Locke defended a variation on traditional marriage on the grounds of progenitiveness and care for dependent offspring, his more foundational commitment to the importance of the removal of uneasiness precludes, on pain of inconsistency, limiting marriage to opposite-sex couples. This paper argues, furthermore, that conservatives and neo-conservatives who celebrate this nation's being …

Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key …

Jewish Law Courts In America: Lessons Offered To Sharia Courts By The Beth Din Of America Precedent, Michael J. Broyde

Faculty Articles

Although the BDA is now a fifty-year-old organization, its true metamorphosis as an arbitration panel began only in 1996 when it gained autonomy from the Rabbinical Council of America. In the fifteen years since, an independent board of directors has worked with the BDA’s rabbinic leaders to craft an arbitration process that secular courts would feel comfortable upholding. While the BDA’s transformation required some level of compromise within Jewish law itself, the adaptations necessary for judicial acceptance proved to be procedural. Broadly, this meant conforming to the tenets of the Federal Arbitration Act (FAA). More specifically, the BDA’s viability came …

Two Cheers For The Constitution Of The United States: A Response To Professor Lee J. Strang, Patrick Mckinley Brennan

Working Paper Series

This article is an invited response to Professor Lee Strang’s article Originalism and the Aristotelian Tradition: Virtue’s Home in Originalism, 80 Fordham L. Rev. 1997 (2012). Strang defends original public meaning originalism from a virtue theoretic perspective that he traces to the “central Western tradition” and ultimately to Aristotle. I reply that those committed to that tradition do better (1) to reject original pubic meaning originalism, (2) to embrace some version of original intent originalism, and (3) to defend the original intent meaning of the U.S. Constitution only with important reservations and on certain conditions. The original sin of …

Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Mckinley Brennan

Working Paper Series

This is my Introduction to Legal Affinities: Explorations in the Legal Form of Thought (forthcoming 2012) (co-edited with H. Jefferson Powell and Jack Sammons), a volume of essays dedicated to exploring the work of Joseph Vining. The Introduction introduces Vining’s phenomenology of law and surveys the themes and topics developed by the volume’s eight authors: Joseph Vining, Judge John T. Noonan, Jr., Rev. John McCausland, H. Jefferson Powell, Jack Sammons, Steve Smith, James Boyd White, and Patrick Brennan.

The Will Of The (Iraqi) People, Haider Ala Hamoudi

Articles

While there has been much literature on the Iraqi constitution of both the scholarly and popular media variety, attention to contemporary Iraqi judicial decisions, and in particular those of the Iraqi Federal Supreme Court, has been far less pronounced. In fact, my own search has not led me to a single published law review article on the subject. There is some irony to this – it is, after all, rather difficult to address the concept of constitutionalism in any state without reference to constitutional praxis, and the judiciary is, at the very least, an integral participant in that praxis. I …

Veiled Women In The American Courtroom: Is The Niqab A Barrier To Justice?, Anita L. Allen

All Faculty Scholarship

U.S. courts and policy-makers have recently authorized laws and practices that interfere with the wearing of religious modesty attire that conceals the hair or face in contexts such as courtroom testimony or driver’s license issuance. For example, in response to a court’s dismissal of the case of a woman who refused to remove her niqab in the courtroom, the Michigan Supreme Court decided that judges can exercise “reasonable control” over the appearance of courtroom parties. But what degree of control over religious attire is reasonable? The Constitution will not allow a blanket niqab removal policy based on any of the …

Commerce In Religion, Bernadette Meyler

Cornell Law Faculty Publications

As this Symposium Article contends, religion increasingly overlaps with the commercial sphere, and courts are obligated to determine whether or not to adopt an entirely hands-off approach simply because the specter of religion lurks on the horizon. Whereas the jurisprudence of the European Court of Human Rights tends to accept its member states' separation of commercial elements out from the protections more generally accorded to religion, the U.S. Supreme Court has treated the two spheres as overlapping. To the extent that each court does consider religious transactions in terms of commercial relations, each also arrives at a very different conception …

Debt And Democracy: Towards A Constitutional Theory Of Bankruptcy, Jonathan C. Lipson

All Faculty Scholarship

This article examines the relationship between bankruptcy and constitutional law. Article I, § 8, cl. 4 of the Constitution provides that Congress shall have the power to make “uniform laws on the subject of bankruptcies.” While there are many good social, political and economic theories of bankruptcy, there has been surprisingly little effort to explore what it means to have constitutionalized financial distress. This article is a first step in that direction. Constitutional problems with bankruptcy are not new, but present three under-appreciated puzzles: First, why have we put a bankruptcy power in the Constitution, and what does its “peculiar” …

Jeffersonian Walls And Madisonian Lines: The Supreme Court’S Use Of History In Religion Clause Cases, Mark Hall

Faculty Publications - Department of History and Politics

In Everson v. Board of Education (1947), Justice Wiley Rutledge observed that '[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.' Scholars and activists argue about the relevance or irrelevance of the Supreme Court’s use of history in general, and the extent to which Justices are good historians. These debates have been particularly furious with respect to the Court’s use of history in religion clause cases. Although broad claims are …

The Endorsement Court, Jay D. Wexler

Faculty Scholarship

Since 1986, when William H. Rehnquist was confirmed as the sixteenth Chief Justice of the United States, the Supreme Court has virtually rewritten the entire law regarding the First Amendment’s Religion Clauses. With respect to the Free Exercise Clause, the Court, in its 1990 Employment Division v. Smith decision, reversed years of jurisprudence and held that the First Amendment does not entitle religious believers to exemptions from neutral laws of general application. On the Establishment Clause side, the Court recently overturned a series of its earlier decisions on its way to creating a body of law quite amenable to the …

Triptych: Sectarian Disputes, International Law, And Transnational Tribunals In Drinan's "Can God And Caesar Coexist?", Christopher J. Borgen

Faculty Publications

Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today's systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom.

To what extent …

The Iceberg Of Religious Freedom: Subsurface Levels Of Nonestablishment Discourse, Steven Douglas Smith

University of San Diego Public Law and Legal Theory Research Paper Series

This article discusses three levels of disagreement in establishment clause discourse– or what may be called the “lawyerly,” the “constitutive” (or “culture wars”), and the “philosophical” (or perhaps the “theological”) levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface. The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other …

Journeying Through The Valley Of Evil., Douglas O. Linder

Faculty Works

No abstract provided.

Table Of United States Supreme Court Decisions Relating To Religious Liberty 1789-1994, Carl H. Esbeck

Faculty Publications

No abstract provided.