Religion Law Commons^™

Why Basic Liberties Are Bilateral, James W. Nickel

Articles

No abstract provided.

The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck

Faculty Publications

This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters "respecting an establishment of religion." Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.

Religious Freedom As If Religion Matters: A Tribute To Justice Brennan, Stephen L. Carter

Philip A. Hart Memorial Lecture

On April 22, 1998, Professor of Law, Stephen L. Carter of Yale Law School, delivered the Georgetown Law Center’s eighteenth Annual Philip A. Hart Memorial Lecture: "Religion-Centered Free Exercise: A Tribute to Justice Brennan."

Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America’s Wars in the Age of Obama (2011). Among his other books on law and politics are God’s Name in Vain: The …

Passage Of Religious Freedom Act Necessary To Fulfill Maryland's National Leadership Role, Kenneth Lasson

All Faculty Scholarship

Three hundred sixty-four years ago this month, two tiny sailing ships arrived near what is now St. Mary's City with the first settlers in Maryland. The Ark and the Dove were sent to the New World by Cecil Calvert. Lord Baltimore had founded his small colony as a haven for those persecuted in England because of their religious beliefs.

On numerous occasions since then - from passage of the Act of Toleration in 1649 to the achievement of full civil liberties for Jews in 1825 to landmark Supreme Court decisions involving the state in the 1960s - Maryland has been …

Faith And The Attorney-Client Relationship: Muslim Perspective, Azizah Y. Al-Hibri

Law Faculty Publications

Three significant factors have converged to contribute significantly to the state of spiritual impoverishment, fragmentation, and work-place alienation experienced by professional people of faith in this country. They are: the emergence of material secularism as the dominant ideology, the uncritical acceptance of technological reductionism, and the over-broad interpretation of the public/private distinction. I shall discuss these factors from a spiritual perspective generally, and an Islamic one specifically. I shall also present an Islamic point of view on of the attorney-client relationship, critique Professor Allegretti's proposal, and mention some of the problems that lawyers of faith must consider in their daily …

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

Journal Articles

No abstract provided.

Legal Reform: Reviewing Human Rights In The Muslim World, Azizah Y. Al-Hibri

Law Faculty Publications

Muslims take spirituality very seriously and would be willing to put up with a great deal of pain and suffering rather than abandon this fundamental disposition. Additionally, many Muslims have an intuitive belief that it is not religion which is at fault, but those in power. Consequently, they continue to search for the spiritually acceptable solution. In the meantime, Western NGOs offer no more than lightly-modified Western secular solutions, sometimes thinly disguised with religious rhetoric.

Review Of Political Theory For Mortals: Shades Of Justice, Images Of Death, Donald J. Herzog

Reviews

Daring to go where plenty of mortals have gone before him, John Seery sets out to explore death. The resulting volume, more episodic than sustained, is brash, even feverishly energetic, as though Seery is desperately cheery about his chosen topic. This book is by turns witty and irritating, its interesting conjectures and lines of argument intimately mixed up with what this stodgy reader saw as frivolous posturing. It's easy to lampoon Seery's prose style; in fact, all one needs to do is quote it. Socrates, we learn, is "a blowhard buffoon," or at least readers might reasonably see him that …

John P. Reeder, Jr.'S Killing And Saving: Abortion, Hunger, And War (Book Review), Elizabeth B. Mensch

Book Reviews

No abstract provided.

Cloning People: A Jewish Law Analysis Of The Issues, Michael J. Broyde

Faculty Articles

This Article is an attempt to create a preliminary and tentative analysis of the technology of cloning from a Jewish law perspective. Like all preliminary analyses, it is designed not to advance a rule that represents itself as definitive normative Jewish law, but rather an attempt to outline some of the issues in the hope that others will focus on the problems and analysis found in this Article and will sharpen or correct that analysis. Such is the way that Jewish law seeks truth.

In the case of cloning-as with all advances in reproductive technology- the Jewish tradition is betwixt …

Susanna And The Elders: A Note On The Regulation Of Families, Carol Weisbrod

Faculty Articles and Papers

No abstract provided.

The Justice Who Wouldn't Be Lutheran: Toward Borrowing The Wisdom Of Faith Traditions, Marie Failinger

Faculty Scholarship

Although many authors have debated the propriety of the use of religious arguments in public policy discussions and lawmaking, few have critically reviewed the jurisprudence of particular judges through the lens of their own faith-traditions. Preliminarily, this article attempts a modest contribution to the discussion about the use of religious argument in public discussions by suggesting that judicial opinions should be viewed rhetorically and that religious assumptions and claims may legitimately be "borrowed" analogically into such opinions, at least their forensic and epideictic elements. More concretely, it analyzes themes in some of Justice William Rehnquist's opinions to determine how consistent …

Response To Judging Religion By Winnifred Fallers Sullivan (Symposium: Religion And The Judicial Process: Legal, Ethical, And Empirical Dimensions), James Boyd White

Articles

In her paper Professor Sullivan sets forth an admirable ideal: that we in the law should talk about religion as a distinctive human activity, without either engaging in theology ourselves or erasing what is important about religion. We: should, in her words, learn to acknowledge religion without establishing it. For this activity, as she has also argued in Paying the Words Extra, the discipline of the history of religion can serve as a model, for there too people strive to reflect what is distinctive about religion without committing themselves to the validity of a particular theology or set of religious …

Catholic Judges In Capital Cases, John H. Garvey

Scholarly Articles

No abstract provided.

Chapter 7 - Reflections On The Scholarship Of Elizabeth B. Clark, Kristin Olbertson, Carol Weisbrod, Christine Stansell, Martha Minow

Manuscript of Women, Church, and State: Religion and the Culture of Individual Rights in Nineteenth-Century America

Elizabeth Clark's essays on early nineteenth-century reform movements make a compelling case that abolitionists and feminists alike understood individual rights from a profoundly religious perspective. Clark also demonstrates how these reformers advocated the protection of so-called "natural rights" for enslaved African-Americans and white women in the vivid and fervently emotional language of evangelical revivalism. Broader cultural and intellectual trends of resistance to governmental and clerical authority, trends rooted in liberal and evangelical Protestantism, Clark argues, helped fuel attacks on slavery and gender inequality. Rejecting other historians' portrayals of the antebellum reformers as primarily secular in orientation, Clark makes the arresting, …

Single Gender Marriage: A Religious Perspective, Raymond C. O'Brien

Scholarly Articles

This Article will offer a religious perspective which is a response to the legal arguments in favor of single-gender marriage. Three arguments will be made: first, that the religious perspective identified and associated with the Roman Catholic tradition offers a fundamental basis for family life that has been proven to be beneficial to society as a whole, and to the message of revelation consigned to Christians by Jesus Christ; second, inasmuch as the religious perspective is being contradicted by judicial interpretation rather than through legislative process, a tyranny of judicial activism has and is subverting a public policy consensus; and …

Judicial Supremacy And The Settlement Function, Robert F. Nagel

Publications

No abstract provided.

Liberalism Stumbles In Tennessee, Donald J. Herzog

Reviews

The Scopes trial will never be the same. I mean the trial immortalized in Inherit the Wind,' with its Southerners clutching in vain to their cozy scientific illiteracy and mechanically literal faith in the Bible, its idiotic intolerant Southerners destined to fall to the gale winds of modernity, liberalism, secularism, and skepticism embodied by a heroic ACLU and the inimitable Clarence Darrow. So what if Scopes got convicted? Surely the trial made a laughingstock of everything Tennessee stood for in banning the teaching of evolution from the public schools. And in a touch worthy of a gruesome morality play, William …

Spiritual Equality, The Black Codes, And The Americanization Of The Freedmen, David F. Forte

Law Faculty Articles and Essays

The notion of spiritual equality grew from the abolitionist movement - the precursor for the political ideology of the radical Republicans. The radical Republicans did not think one could achieve the acceptance of spiritual equality through forced material equality. [I]t was a religious revival that brought our country to confront the reality of slavery. It was a theological doctrine from which we derived our notion of equality in the Reconstruction Amendments. And in that era, the free-thinkers - the secularists of the age - were temporizers on the issue. They were simply of no use in the raising to liberty …

On The Practical Meaning Of Secularism, John M. Finnis

Journal Articles

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 …

Professing Professionals: Christian Pilots On The River Of Law, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

The Status Of Constitutional Religious Liberty At The End Of The Millennium, Kurt T. Lash

Law Faculty Publications

I have the privilege of introducing the 1998 Bums Lecture Symposium- Religious Liberty in the Next Millennium: Should We Amend the Religion Clauses of the United States Constitution? My role in this Symposium is to acquaint you with the religion clauses of the Constitution- where they came from- where they've been- and where they seem to be today. Our Symposium contributors, Professors Kent Greenawalt and Robert George will discuss just where they think the religion clauses should go in the future.

Power And The Subject Of Religion, Kurt T. Lash

Law Faculty Publications

Under the First Amendment, "Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof." Nevertheless, congressional actors have on occasion enacted laws that expressly make religion the subject of legislation. Many scholars justify these laws on the grounds that Congress at the time of the Founding had an implied power to legislate on religion if necessary and proper to an enumerated end.

Professor Lash argues that the "implied power" theory cannot withstand historical scrutiny. Whatever "implied power" arguments may have emanated from the original Constitution, those arguments were foreclosed by the adoption of the …

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?

Congressional Alternatives In The Wake Of City Of Boerne V. Flores: The (Limited) Role Of Congress In Protecting Religious Freedom From State And Local Infringement, Daniel O. Conkle

Articles by Maurer Faculty

This article discusses and analyzes City of Boerne v. Flores, the Supreme Court's 1997 decision invalidating the Religious Freedom Restoration Act of 1993 (RFRA) as applied to state and local governments, and it explores a variety of ways in which Congress might respond to Boerne with legislation that might survive constitutional scrutiny. In particular, the article addresses the following statutory possibilities: more narrowly tailored legislation grounded on Section 5 of the Fourteenth Amendment; RFRA-like legislation grounded on Congress's power over interstate commerce or its power to implement treaties; and spending-power legislation imposing RFRA-like conditions on the receipt of federal funding …

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 …

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

Journal Articles

No abstract provided.

Should The Religion Clauses Of The Constitution Be Amended?, Kent Greenawalt

Faculty Scholarship

Our subject, whether the religion clauses of the federal constitution should be amended, goes to the heart of relations between government and the practice of religion in our society. These relations deeply affect the health of both religion and government. When public officials persecute some religions and embrace others, the risks are political tyranny and rigid, unthinking, unfeeling, vapid religion. No one wishes that fate for us.

When most people ask whether the religion clauses should be amended, they are really asking whether judicial interpretations have become so misguided that Congress and state legislatures should intervene and invoke the cumbersome …

Originalism And The Religion Clauses: A Response To Professor George, Kent Greenawalt

Faculty Scholarship

This response to Professor Robert George's thoughtful remarks tries to preserve the flavor of a brief rejoinder in a debate. I sketch differences with him over some major topics, but I do not develop these at length.

Religious Law And Civil Law: Using Secular Law To Assure Observance Of Practices With Religious Significance, Kent Greenawalt

Faculty Scholarship

Civil law in the United States rarely helps to enforce religious standards or demands that people perform actions whose significance relates to religious obligations. Yet, some American states do have such involvement with certain observances of Orthodox and Conservative Judaism. Many states enforce kosher requirements, to which Orthodox and some Conservative Jews adhere. The laws, which penalize fraud in the labeling of products as kosher, serve the secular interest in preventing deception of consumers. However, the laws also force the state to decide when religious regulations have been violated.

Orthodox and Conservative Jewish divorces raise a second kind of involvement. …