Religion Law Commons^™

Incitement In The Mosques: Testing The Limits Of Free Speech And Religious Liberty, Kenneth Lasson

All Faculty Scholarship

In times of terror and tension, civil liberties are at their greatest peril. Nowadays, no individual rights are more in jeopardy than the freedoms of speech and religion. This is true particularly for followers of Islam, whose leaders have become increasingly radical in both their preaching and practice. "Kill the Jews!" and "Kill the Americans!" are chants heard regularly in many Middle Eastern mosques, as frightful echoes of the fatwa are issued by today's quintessential terrorist, Osama bin Laden. The incitement continues unabated to this day. In April of 2004, for example, a Muslim preacher at the Al-Aqsa Mosque in …

Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith

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

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. …

Introduction, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Roger Williams On Liberty Of Conscience, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Title Vii And Flexible Work Arrangements To Accommodate Religious Practice & Belief

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

This timeline tracks the development of the religious accommodation requirement of Title VII of the Civil Rights Act of 1964. The timeline covers the development of statutory text, relevant EEOC regulations, and Supreme Court precedent.

Free Exercise And The Problem Of Symmetry, Nelson Tebbe

Cornell Law Faculty Publications

This Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a liberty component, shows how it would generate more attractive results than neutrality alone, and defends the liberty approach against likely objections.

A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Under that rule, only laws and policies that have the purpose of discriminating against religion draw heightened scrutiny. All others are presumptively constitutional, regardless of how severely they burden religious practices.

Critics have attacked the …

Is There A "Religious Question" Doctrine?: Judicial Authority To Examine Religious Practices And Beliefs, Jared Goldstein

Law Faculty Scholarship

No abstract provided.

A Jewish Law View Of World Law, Michael J. Broyde

Faculty Articles

This paper will explore two basic Jewish law questions which reflect on the technical issues related to Professor Berman's world law proposal. The first question asks how Jewish law views public international law and whether public international law can be incorporated into the corpus of Jewish law. The second question asks how Jewish law generally incorporates domestic (municipal) law into Jewish law and if this classical paradigm of integration assists in formulating a Jewish law view of world law. To the best of my knowledge, the first matter is a question of nearly first impression in the Jewish law literature.

The Morality Of Human Rights: A Nonreligious Ground?, Michael J. Perry

Faculty Articles

In the midst of the countless, grotesque inhumanities of the twentieth century, however, there is a heartening story, amply recounted elsewhere: the emergence, in international law, of the morality of human rights. The morality of human rights is not new; in one or another version, the morality is very old. But the emergence of morality in international law, in the period since the end of World War II, is a profoundly important development.

The twentieth century, therefore, was not only the dark and bloody time; the second half of the twentieth century was also the time in which a growing …

Micheal Perry's Right To Religious Freedom, Richard Kay

Faculty Articles and Papers

No abstract provided.

The Demise Of The First Amendment As A Guarantor Of Religious Freedom, Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

Book Review: Ferrari & Durham, Law And Religion In Post-Communist Europe, Mark Weston Janis

Faculty Articles and Papers

No abstract provided.

Review, Law And Religion In Post-Communist Europe & Laws On Religion And The State In Post-Communist Europe, Mark Weston Janis

Faculty Articles and Papers

Reviewing Law and Religion in Post-Communist Europe. Edited by Silvio Ferrari, W. Cole Durham, Jr. and Elizabeth A. Sewell. Law and Religion Studies 1. Peeters 2003 and Laws on Religion and the State in Post-Communist Europe. Edited by W. Cole Durham, Jr. and Silvio Ferrari. Law and Religion Studies 2. Peeters 2004.

Who Needs Freedom Of Religion?, James W. Nickel

Articles

This article proposes that we view freedom of religion as a specific application area of more general basic liberties such as freedoms of thought, expression, association, assembly, movement, privacy, political participation, and economic activity. Separate enumeration of freedom of religion in national and international bills of rights may be useful, but it is not indispensable. In this respect freedom of religion is more like scientific freedom or artistic freedom than like freedom of expression. Recognizing that separate enumeration of freedom of religion is dispensable has salutary consequences for how we conceive and justify freedom as it applies to religion. First, …

The Fair Housing Act And Religious Freedom, 11 Tex. J. C.L. & C.R. 1 (2005), Michael P. Seng

UIC Law Open Access Faculty Scholarship

No abstract provided.

Affirmative Action And Admissions At A Jesuit Law School, Alan Raphael

Faculty Publications & Other Works

No abstract provided.

Rabbi Joseph Soloveitchik’S ‘Confrontation’: A Reassessment, Marshall J. Breger

Scholarly Articles

Responding to a recent symposium on Rabbi Joseph Soloveitchik's 1964 article on the propriety of Christian-Jewish dialogue, this essay begins by assessing several arguments put forth by Soloveitchik. These include the incommensurability of religious faith, the risks interreligious dialogue presents to the Jewish minority, the dangers of syncretism, and the ability to separate neatly the sacred and the profane. The article then proceeds to discuss the nature of Catholic-Jewish today, and concludes with thoughts about the future of Christian and Jewish interaction.

A Property Rights Approach To Sacred Sites Cases: Asserting A Place For Indians As Nonowners, Kristen A. Carpenter

Publications

Although the Free Exercise Clause prohibits governmental interference with religion, American Indians have been unsuccessful in challenging government actions that harm tribal sacred sites located on federal public lands. The First Amendment dimensions of these cases have been well studied by scholars, but this Article contends that it is also important to analyze them through a property law lens. Indeed, the Supreme Court has treated the federal government's ownership of public lands as a basis for denying Indian religious freedoms claims. This Article contends that such holdings rely on an "ownership model" of property law wherein the rights of the …

Rites And Rights In Afghanistan: The Hazara And The 2004 Constitution, Justin Desautels-Stein

Publications

No abstract provided.

Changing Minds: Proselytism, Freedom, And The First Amendment, Richard W. Garnett

Journal Articles

Proselytism is, as Paul Griffiths has observed, a topic enjoying renewed attention in recent years. What's more, the practice, aims, and effects of proselytism are increasingly framed not merely in terms of piety and zeal; they are seen as matters of geopolitical, cultural, and national-security significance as well. Indeed, it is fair to say that one of today's more pressing challenges is the conceptual and practical tangle of religious liberty, free expression, cultural integrity, and political stability. This essay is an effort to unravel that tangle by drawing on the religious-freedom-related work and teaching of the late Pope John Paul …

Cross Purposes: Remedying The Endorsement Of Symbolic Religious Speech, Jordan C. Budd

Law Faculty Scholarship

Justice O’Connor’s “perception of endorsement” standard governs the analysis of religious displays on public property for purposes of the Establishment Clause. The test rests on the perceptions of an “objective observer,” endowed with essentially perfect factual information, who assesses whether the display of religious imagery reasonably implies official endorsement of its message. Applying this standard, a well-developed jurisprudence unambiguously proscribes the permanent placement of religious symbols on public land. The remediation of these violations, however, is an ad hoc and often superficial exercise. This Article proposes a framework to realign the remedial inquiry with the rigorous assessment of the proscription …

Sacred Visions Of Law, Robert Tsai

Articles in Law Reviews & Other Academic Journals

Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …

Toward Reconciliation In The Middle East: A Framework For Christian-Muslim Dialogue Using Natural Law Tradition, Russell Powell

Faculty Articles

In this paper, Professor Powell argues that the thinking of Bernard Lonergan in light of the natural law insights of St. Thomas Aquinas, Ali Ezzati and Abdullahi Ahmed An-Na'im provides a framework for Christian-Muslim dialogue. Lonergan's transcendental method moves from the individual subject to universal insights rather than presuming to deduce universals a priori, without regard for history, culture and individual experience. Professor Powell asserts that the most fruitful starting place for meaningful dialogue is to address questions of human rights and social justice using natural law theory, rather than focusing on theological concerns. If Muslims and Christians mutually acknowledge …

Considering Individual Religious Freedoms Under Tribal Constitutional Law, Kristen A. Carpenter

Publications

As American Indian nations revitalize their legal systems, there is renewed interest in "tribal law," that is, the law of each of the Indian nations. Today, there is a particular focus on the subject of "individual rights" under tribal law. In tribal contexts, people are highly interested in the legal institutions and rules that govern their lives, especially as many tribal communities are experiencing a period of great political, social, and economic change. At the national level, the Supreme Court repeatedly expresses concern about whether individuals, especially non-Indians, will be treated fairly in tribal court. For scholars, individual rights under …

Book Review, Mark C. Modak-Truran

Journal Articles

RELIGION ON TRIAL makes the historical debates about the religion clauses accessible to a broad audience. In addition, it properly links issues of free exercise of religion to issues about fundamental rights in a manner that is usually missed by legal scholars and political scientists. Consequently, this book would be a good addition to undergraduate, graduate, and law school courses on the religion clauses or on law and religion.

Religious Lawyering Critique, The Aals Presentations, Bruce A. Green

Faculty Scholarship

One might think about the relationship between law practice and religion in different ways, depending on how one views either the professional norms or religious belief and observance. Some of the most recent academic literature on "religious lawyering" is premised on a highly critical view of the profession's norms and a claim that religious convictions that bear on the practice of law are incompatible with, and preferable to, aspects of the professional norms. My purpose here is to identify, and raise some questions about, both this critique and this suggestion, and to show how they are in tension with other …

Religious Freedom In Philadelphia, Philip A. Hamburger

Faculty Scholarship

Some controversies seem particularly significant for the development of constitutional rights. For the freedom from an establishment of religion, the most famous early debate occurred in Virginia in the mid-1780s. For the more immediate freedom of religion, however – the freedom from penalty or constraint on religion – the central historical debate is less familiar. It was in some respects merely a local quarrel, which embroiled Quakers and Revolutionaries in Philadelphia during a few tense weeks in 1775. Nonetheless, it was a revealing moment in the development of American religious liberty. At a time when Americans were struggling for equality …

The Protestant Revolutions And Western Law, William Ewald

All Faculty Scholarship

No abstract provided.

Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill

Faculty Publications

The Supreme Court's jurisprudence concerning public displays of religious symbols is notoriously unpredictable. In this Article, Professor Hill argues that the instability and apparent incoherence of the Supreme Court's religious symbolism jurisprudence is due to certain difficulties inherent in discerning the "meaning" or "message" of a religious display. In particular, she attributes the unpredictability of the jurisprudence to the fact that the meaning of the display is dependent on the "context," which is itself an unmanageable and unformalizable concept. This Article, which draws on insights from literary and linguistic theory, breaks with previous commentators' claims that the difficulties with the …

Spiritual Custody: Relational Rights And Constitutional Commitments, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

Patricia and David Zummo were married on December 17, 1978. When they divorced ten years later, the Zummos were unable to come to agreement about the religious upbringing of their three children. Prior to their marriage, Patricia and David had agreed that they would raise their children in the Jewish faith, and while they were married, "the Zummo family participated fully in the life of the Jewish faith and community." But after the divorce David wanted to take the children to Roman Catholic services as he saw fit, and he refused to arrange for the children's attendance at Hebrew School …