Religion Law Commons^™

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

Cornell Law Faculty Publications

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories …

Judaism Without Ordinary Law: Toward A Broader View Of Sanctification, Jonathan R. Cohen

UF Law Faculty Publications

With the functional constriction of Jewish law to the ritual, it is easy to relegate Torah and, with it, our sense of sanctification, to the ritual. Such is a great loss. Recognizing sanctification as not only separation but also elevation may help us see the possibility of pursuing sanctification throughout our lives. In other words, the legal constriction produced by history should not become a spiritual one as well.

Evidence On The Relationship Between Takaful Insurance And Fundamental Perception Of Islamic Principles, Ramin Cooper Maysami, John Joseph Williams

Research Collection School Of Accountancy

One of the complexities overarching the concept of Islamic insurance is anchored in the belief system pertaining to fundamental Islamic Law, while another is embedded in the role of profit within the takaful contract. The purpose of this study is to empirically explore the association between the awareness of the existence of Islamic insurance (takaful) and religious perceptions of this financial service.

Christianity And The (Modest) Rule Of Law, David A. Skeel Jr., William J. Stuntz

All Faculty Scholarship

Conservative Christians are often accused, justifiably, of trying to impose their moral views on the rest of the population: of trying to equate God's law with man's law. In this essay, we try to answer the question whether that equation is consistent with Christianity. It isn't. Christian doctrines of creation and the fall imply the basic protections associated with the rule of law. But the moral law as defined in the Sermon on the Mount is flatly inconsistent with those protections. The most plausible inference to draw from those two conclusions is that the moral law - God's law - …

Religious Group Autonomy: Further Reflections About What Is At Stake, Kathleen A. Brady

Working Paper Series

This article addresses the protections afforded by the First Amendment when government regulation interferes with the internal activities or affairs of religious groups. In previous pieces, I have argued that the First Amendment should be construed to provide religious groups a broad right of autonomy over all aspects of internal group operations, those that are clearly religious in nature as well as activities that seem essentially secular. In my view, such autonomy is necessary to preserve the ability of religious groups to generate, live out and communicate their own visions for social life, including ideas that can push the norms …

The Court's Purpose: Secular Or Anti-Strife?, Bernadette Meyler

Cornell Law Faculty Publications

No abstract provided.

The Equal Protection Of Free Exercise: Two Approaches And Their History, Bernadette Meyler

Cornell Law Faculty Publications

Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually intertwined. The seeds of an equal protection analysis of free exercise were, indeed, planted even before the Fourteenth Amendment within the constitutional jurisprudence of the several states. Furthermore, this Article argues, equal protection approaches should not be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection. By ignoring the lessons …

Recoiling From Religion, Marc O. Degirolami

Faculty Publications

This is an essay reviewing Professor Marci A. Hamilton's book, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (Cambridge Univ. Press 2005).

Professor Marci Hamilton has written a forceful and obviously heartfelt book that should give pause to committed champions of religious free exercise. She argues convincingly that religious freedom is too often invoked to shield opprobrious and socially harmful activity, and she describes numerous examples of such abuses that make any civilized person's blood run cold. Her avowed aims are to debunk the “hazardous myth” that religion is “inherently and always good for society” and to increase …

Looking Beyond The Mercy/Justice Dichotomy: Reflections On The Complementary Roles Of Mercy And Justice In Jewish Law And Tradition, Samuel J. Levine

Scholarly Works

In one of his earliest encyclicals, Dives in Misericordia, Pope John Paul II explored the concepts of mercy and kindness, with a focus on notions of divine love and compassion. Building upon these observations, and drawing extensively on the work of Rabbi Joseph Soloveitchik and other scholars of Jewish law and philosophy, Levine considers the complementary roles of justice and mercy in Jewish tradition. Toward that end, Levine places these concepts in a broader perspective, viewing mercy as representative of attributes such as kindness, compassion, love, and peacefulness, while understanding justice in terms of more exacting principles, such as strict …

Religion In The Classroom In Germany And The United States, Edward J. Eberle

Law Faculty Scholarship

In this Article, Professor Eberle evaluates the relationship of religion in the classroom in Germany and the United States, as formulated by the countries' highest courts, the German Constitutional Court and the United States Supreme Court Pursuant to the German model of church-state cooperation, public finds are channeled to religious organizations, such as, for example, using the machinery of the state to rise and disperse tax monies to religious organizations. Religious groups may then use the tax monies collected to support religious education in the public schools. However, pursuant to guidelines announced by the German Constitutional Court, teaching of religious …

Religious Liberty And The Law, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Beyond Worship: The Religious Land Use And Institutionalized Persons Act Of 2000 And Religious Institutions' Auxiliary Uses, Sara C. Bronin

Cornell Law Faculty Publications

Religious institutions have long offered their congregants services that go beyond worship. Particularly in the last two decades, they have begun expanding far beyond their traditional offerings to a wider and more diverse array of auxiliary uses - non-worship uses that are affiliated with a religious institution. (One type of large religious institution, the megachurch, is fast gaining members by offering schools, community centers, dining facilities, even movie theaters and gymnasiums.) Government has long granted special protections to the worship uses of religious institutions. A recent federal law - the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) …

Play In The Joints Between The Religion Clauses' And Other Supreme Court Catachreses, Carl H. Esbeck

Faculty Publications

Consistent with its fumbling of late when dealing with cases involving religion, the U.S. Supreme Court has taken to reciting the metaphor of play in the joints between the Religion Clauses. This manner of framing the issue before the Court presumes that the Free Exercise and Establishment Clauses run in opposing directions, and indeed will often conflict. It then becomes the Court's task, as it sees it, to determine if the law in question falls safely in the narrows where there is space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause. The …

Governance And The Religion Question: Voluntaryism, Disestablishment, And America's Church-State Proposition, Carl H. Esbeck

Faculty Publications

The quandary over how to structure the relationship between religion and the civil state is an ancient one. From the perspective of political philosophy this is the religion question, and events over many centuries have proven that the answer is easy to get wrong. Religion, by its very definition, is the fixed point from which all else is surveyed. It is about ultimate matters, both micro and macro. Hence, religion addresses the irreducible core of personhood and its meaning, while at the same time religion embraces a worldview that transcends and encompasses everything else. Religion generates intense emotions that when …

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 …

In Praise Of Contextuality - Justice O'Connor And The Establishment Clause, Marie Failinger

Faculty Scholarship

Among Justice Sandra Day O’Connor’s lasting contributions to Supreme Court Jurisprudence has been her attempt to contextualize Religion Clause jurisprudence, to move the Court in the direction of considering the circumstances surrounding government in assessing its constitutionality. Typical of this contributor has been her two decades of work in Establishment Clause law, in particular, ended by Lynch v. Donnelly, in which she introduced the “non-endorsement” test and one of the Ten Commandment cases, McCreary County, Kentucky v. American Civil Liberties Union, in which it was most recently employed. The non-endorsement test has served as one of the two commonly competing …

Race, Religion And Law: The Tension Between Spirit And Its Institutionalization, George H. Taylor

Articles

My reflections flow from some recent writings by the critical race scholar Derrick Bell. Bell acknowledges that in prior work he has focused on the "the economic, political, and cultural dimensions of racism" but now suggests the possibility of a "deeper foundation" arising from the conjunction that "[m]ost racists are also Christians." This statement is Bell at his best: at once both extremely provocative and extremely unsettling. I want to explore and develop two aspects of Bell's argument.

First, if we want to examine and understand the many dimensions of racism, it is not enough to employ economic, political, or …

Jesus And The Samaritan Woman: A Coda, Alan Watson

Scholarly Works

For the final examination in my 'Law and the Gospels' class at the University of Georgia Law School, fall semester in 2004, I set essay questions, one of which was about law in the encounter between Jesus and the Samaritan woman in John 4. Several students chose that option. I had already published on the subject, claiming that the episode involved a sexual 'come-on' by the woman. 'Bucket' was a hidden -- not too hidden -- word for 'penis', 'well' likewise for 'vagina', and 'living water' for 'semen'. In antiquity, as in the modern Western world (until recently), women were …

Law, Religion, And Medical Science: Conjunctive Or Disjunctive?, George P. Smith Ii

Scholarly Articles

No abstract provided.

Faith In The Public Square: Some Reflections On Its Role And Limitations From The Perspective Of Catholic Social Thought, Lucia A. Silecchia

Scholarly Articles

In recent years, there has been a renewed interest in the proper role of religion in the public square. This paper offers brief reflections on the role for religious entities to play in the process of law-making and the development of public policy. It addresses this question NOT from the perspective of the government looking at religion to see what role it should play. Rather, it examines this question from the perspective of a religious group assessing what its proper role and moral obligations might be in the public square. Much of this discussion is taken, specifically, from principles of …

Old Ground And New Directions At Sacred Sites On The Western Landscape, Kristen A. Carpenter

Publications

The federal public lands contain places with both religious and secular value for American people. American Indians, in particular, hold certain natural features to be sacred, and visit them for ceremonies and worship. Simultaneously, non-Indians use the same places for economic, recreation, and many other purposes - and conflicts arise between these groups. In the past twenty years, a body of constitutional jurisprudence has developed to address questions of religious freedoms and public access rights on these lands that are owned and managed by the federal government. This article outlines the relevant First Amendment framework as well as recent statutes …

Introduction: Religion, Division, And The Constitution, Richard W. Garnett

Journal Articles

Thirty-five years ago, in his landmark Lemon v. Kurtzman opinion, Chief Justice Warren Burger declared that state actions could "excessive[ly]"—and, therefore, unconstitutionally—"entangle" government and religion, not only by requiring or allowing intrusive monitoring by officials of religious institutions and activities, but also through their "divisive political potential." He worried that government actions burdened with this "potential" pose a "threat to the normal political process and "divert attention from the myriad issues and problems that confront every level of government." And, he insisted that "political division along religious lines was one of the principal evils against which the First Amendment was …

The Democratic Virtues, Our Common Life And The Common School: Trust In Democracy: Anabaptists, Italian Americans, And Solidarity, Thomas L. Shaffer

Journal Articles

Consider two phrases in Professor Marie Failinger's charge to those of us discussing Jeffrey Stout's Democracy and Tradition, October 28, 2005, at Hamline University: (i) "How would we construct a real democratic sociality holding each other responsible for ethical life that would warrant trust in democracy? . . . and, (ii) How do the religious traditions help us reflect on this issue?"

My reflection, probably sectarian, refers more to where we come from than to what we choose. The reference here is to three communities, none of which is primarily concerned with "real democratic sociality." But none of them is …

Religion And State: Some Main Issues And Sources, John M. Finnis

Journal Articles

Public reason's default position is not atheism or agnosticism about the dependence of everything on a transcendent Creator. On the contrary, there is good reason to judge that there is such a transcendent cause, capable of communicating with intelligent creatures, that one of the world's religions may be essentially true and others substantially truer than atheism, and that there is a human or natural right to immunity from coercion in religious inquiry, belief (or unbelief, precisely as such), and practice so far as is compatible with public order, that is with the rights of others, public peace and public morality. …

Kitzmiller And The "Is It Science?" Question, Jay D. Wexler

Faculty Scholarship

When Judge John E. Jones, III, a United States District Court judge appointed by President George W. Bush, ruled that the Dover school board's intelligent design (ID) policy violated the Establishment Clause, ID opponents were ecstatic. They had good reason to be. The opinion was a comprehensive and complete victory for ID opponents. The decision held that the policy was an unconstitutional endorsement of religion when viewed both from a reasonable Dover student's perspective as well as from the perspective of a reasonable adult in the Dover community. It also held that the policy was adopted for a religious purpose, …

Common Sense About Original And Subsequent Understanding Of The Religion Clauses, Kent Greenawalt

Faculty Scholarship

This Essay is mainly about the Establishment Clause, but it covers analogous questions about free exercise as well. I try to untangle the threads of various controversies, concentrating primarily on what seems fairly resolvable on examination, while also noting uncertainties that do not yield to easy analysis. I ask how constitutional language should have been and should be interpreted, adopting a strategy that gives weight to ordinary meaning and to the general sense of why that language was adopted. I do not eschew reference to legislative history; however for our purposes in this Essay, legislative history turns out to be …

Religious Discourse In The Public Square, David Blaikie, Diana Ginn

Articles, Book Chapters, & Popular Press

Full, open, and civilized discourse among citizens is fundamental to the life of a liberal democracy. It seems trite to assert that no discourse should be prohibited or excluded simply because it is grounded in religious faith or employs religious beliefs to justify a particular position. Yet there are those who contend that it is improper for citizens to use religious arguments when debating or deciding issues in the public square, that metaphorical arena where issues of public policy are discussed and contested. In this article we challenge this position, examining the various arguments that are put forward for keeping …

Ignore The Rumors—Campaigning From The Pulpit Is Okay: Thinking Past The Symbolism Of Section 501(C)(3), Michael Hatfield

Articles

This Article is enough to ruin many Thanksgiving family dinners. It is about American religion, politics, and taxes. Mostly it is about taxes. As I will explain, this is what sets it apart from the contemporary legal scholarship exploring the campaign restrictions on tax exempt churches. This Introduction identifies the problem addressed in the article, then introduces the contemporary legal scholarship and the alternative approach this article takes.

Part I of this Article introduces the reader to the legal context of "the problem" of churches being unable to campaign if they choose to be Tax Exempt under Section 501 (c) …

The Interests Of "Peoples" In The Cooperative Management Of Sacred Sites, Kristen A. Carpenter

Publications

This essay contends that there is a structural element of federal law and policy that sets up legal battles over American Indian sacred sites. The Supreme Court has held that whatever rights groups may have at sacred sites, the federal government's rights as owner and sovereign of the public lands ultimately prevails. Federal agencies can, if they choose, accommodate various interests on the public lands, but such decisions are left to fluctuating executive policy and the discretion of land managers. This approach reflects well-established doctrine in public lands law, but leaves various citizens and groups clamoring for the federal government …

Listening To All The Voices, Old And New: The Evolution Of Land Ownership In The Modern West, Charles Wilkinson

Publications

No abstract provided.