Religion Law Commons^™

Reviewing Holy Writ: Interpretation In Law And Religion, Henry L. Chambers, Jr.

Law Faculty Publications

Holy Writ: Interpretation in Law and Religion is precisely what its title suggests. The book consists of “assembled essays on interpretation in the field of law and religion” written by Justice Antonin Scalia and professors of law and philosophy from the University of Leiden and the University of Utrecht. The genesis of the book was “a conference in the honour of Justice Antonin Scalia, who visited the Leiden law department to celebrate the opening of the new faculty building.” (Preface, ix) The structure of the book makes it particularly enjoyable. The collection is aptly likened to a chain novel in …

Liability Insurance Coverage For Clergy Sexual Abuse Claims, Peter N. Swisher

Law Faculty Publications

This article addresses issues that arise when a policyholder under a standard general liability insurance policy, not containing an express sexual abuse coverage endorsement (or an express sexual abuse exclusion), seeks insurance coverage for sexual abuse claims. Such cases continue to increase in frequency as the legacy of sexual abuse and molestation generates an unrelenting deluge of insurance coverage claims.

The purpose of this article is to explore and analyze the case law and various legal theories supporting and rejecting liability insurance coverage claims involving institutional sexual abuse allegations. This article concludes by recommending a better-reasoned objective concurrent causation legal …

Religion And The Purification Of Reason: Why The Liberal State Requires More Than Simple Tolerance., John M. Breen

Faculty Publications & Other Works

No abstract provided.

Are Christians Fit To Be Parents And Guardians—The Case Of Johns V. Derby City Council, Robert J. Araujo S.J.

Faculty Publications & Other Works

No abstract provided.

Hosanna-Tabor And Supreme Court Precedent: An Analysis Of The Ministerial Exception In The Context Of The Supreme Court’S Hands-Off Approach To Religious Doctrine, Samuel J. Levine

Scholarly Works

The United States Supreme Court‘s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court‘s Religion Clause jurisprudence. On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations. The narrow issue at the center of the case is the ministerial exception, a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees. This Essay …

Phony Originalism And The Establishment Clause, Andrew M. Koppelman

Faculty Working Papers

The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.

The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

Scholarly Articles

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in …

Law Asks For Trust, Nathan Chapman

Scholarly Works

This Article offers a reading of chapters 1 and 2 of the book of Genesis, informed by concerns for the social effects of law. Part I considers the implications of God's method of creating the world by speech in the first chapter of Genesis. Part II turns to God's prohibition against eating the fruit of the tree of the knowledge of good and evil. The content of the prohibition and the nature of the threatened penalty suggest that the prohibition is a rule against disobedience generally, paradigmatic of a general claim by God to be the ruler. With the creation …

Intellect And Virtue: The Idea Of A Catholic University, John H. Garvey

Scholarly Articles

No abstract provided.

From Substance To Shadows: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

Articles

Most disputes about the Establishment Clause center on its substantive meaning; whether, for example, a state subsidy promotes religion, the phrase “In God We Trust” can appear on currency, or a display of the Ten Commandments is unconstitutional. Often overlooked and lurking behind these substantive disputes is a question about what remedies are available when an Establishment Clause violation is found. Typically, an injunction prohibiting the subsidy, practice, or display is the choice. In Salazar v. Buono, however, the Supreme Court was confronted with an unusual case for two reasons. First, the doctrine of res judicata formally barred the …

I'M A Laycockian! (For The Most Part), Jay D. Wexler

Faculty Scholarship

You know you’ve made it, scholarly-wise speaking, when a major publishing house and a preeminent university approach you to ask whether they could publish a four-volume set of your collected works. Such is the situation of Douglas Laycock (DL), long-time Professor at the University of Texas School of Law, now moving from the University of Michigan to the University of Virginia and most certainly on just about everyone’s short list of greatest church–state scholars of the past quarter-century. Volume One of the collection was published in 2010; it is subtitled “Overviews & History” and contains roughly forty pieces written by …

Eagle Party, Jay D. Wexler

Faculty Scholarship

The Rocky Mountain Arsenal National Wildlife Refuge is a straight shot up Havana Street off of I-70 just east of downtown Denver, past an Office Depot and the national headquarters of a company called Scott’s Liquid Gold. No signs point to the Refuge, which was created on the site of a chemical munitions facility back in the mid-1990s and is now home to a herd of bison, dozens of burrowing owls, and so many furry prairie dogs that a roadside sign warns oncoming traffic of their potential “XING.” The entrance is hardly inviting, although the officer working the booth there …

Judges And Religious-Based Reasoning, David Blaikie, Diana Ginn

Articles, Book Chapters, & Popular Press

Is it ever acceptable for a judge in a secular liberal democracy to rely on, and explicitly refer to, religious-based reasoning in reaching a decision? While it is unlikely that many Canadian judges will be seized with the desire to include religious-based reasoning in their judgments, we raise this issue because it allows us to examine the appropriate role of religious-based discourse in a challenging context, where arguments about unconstitutionality are strongest. In a previous article, we concluded that there are no ethical impediments to citizens using such discourse in discussing public affairs. We argued that it is no less …

Key Theoretical Issues In The Interaction Of Law And Religion: A Guide For The Perplexed, Benjamin Berger

Articles & Book Chapters

There is perhaps no more important access point into the key issues of modern political and legal theory than the questions raised by the interaction of law and religion in contemporary constitutional democracies. Of course, much classical political and moral theory was forged on the issue of the relationship between religious difference and state authority. John Locke’s work was directly influenced by this issue, writing as he did about the just configuration of state authority and moral difference in the wake of the Thirty Years’ War. Yet debates about the appropriate role of religion in public life and the challenges …

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 …

Witchcraft Accusations And Human Rights: Case Studies From Malawi, Chi Adanna Mgbako, Katherine Glenn

Faculty Scholarship

This Article explores potential community-based interventions to assist victims of witchcraft accusations, based on forty-five case studies from an experimental mobile legal-aid clinic in Malawi, a country in southeastern Africa where witchcraft accusations are widespread and often irreparably harm those accused. In Malawi, the accused are mainly older women who are often blamed for bewitching young children.

Religious Legal Theory Symposium: Introduction, Mark L. Movsesian

Faculty Publications

On November 5, 2010, the St. John's Center for Law and Religion proudly hosted the annual Religious Legal Theory Conference. The event, now in its second year and to be shared among different universities, brought together scholars from around the world to discuss this year's theme, "Religion in Law, Law in Religion." The Center chose this theme in order to include papers on traditional church-state issues—“Religion in Law"—as well as papers addressing the role that law plays in various religious traditions—“Law in Religion." In addition, because contemporary law and religion scholarship has moved beyond strictly domestic-law questions, and takes an …

Between Liberalism And Theocracy, John D. Inazu

Faculty Scholarship

Our symposium conveners have focused us on “the relationship between liberalism and Christianity and their influence on American constitutionalism.” My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for the relationship between church and state. By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are prone to …

Conference: Laïcité In Comparative Perspective, Elisabeth Zoller, Marc O. Degirolami, Nina Crimm, Javier Martínez-Torrón

Articles by Maurer Faculty

No abstract provided.

Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett

Faculty Publications

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Journal Articles

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law …

Calculations Of Conscience: The Costs And Benefits Of Religious And Conscientious Freedom, Howard Kislowicz, Richard Haigh, Adrienne Ng

Articles & Book Chapters

This article examines the Supreme Court of Canada’s cost-benefit analysis of freedom of conscience and religion guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms in Alberta v. Hutterian Brethren of Wilson Colony. The article finds that while the Supreme Court’s reasoning was ultimately flawed, its use of cost-benefit analysis may be a positive development in the freedom of religion framework. The article also looks at the Court’s treatment of the freedom of conscience guarantee in relation to freedom of religion. The article suggests that this treatment may foreshadow a more uniform approach to the broader …

The Church Abuse Scandal: Were Crimes Against Humanity Committed?, Dermot Groome

Faculty Scholarly Works

No abstract provided.

The Siren Song Of History: Originalism And The Religion Clauses, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

It is hard to foresee much happiness in the lot of those seeking the original meaning of the Religion Clauses. We may acknowledge the opacity of the historical record, the variety of viewpoints held by founders forgotten and non-forgotten, the humanness of the founders who did not always practice what they preached, even the basic indeterminancy of language; still, we are seduced by the siren song of interpretive certainty. But the search for greater clarity is not without its payoff. As the three books under review here illustrate, the more we look for answers in the historical record, the more …

Ancient Laws, Yet Strangely Modern: Biblical Contract And Tort Jurisprudence, Richard H. Hiers

UF Law Faculty Publications

People generally, and even most biblical scholars, tend to view biblical law as, at best, a random patchwork of odd and antiquated commandments and rules. The present Article demonstrates that many biblical laws can be understood to have functioned in biblical time, in ways remarkably similar to various laws characterized in modern Anglo-American jurisprudence as contract and tort law. In particular, the Article points out that the biblical tort laws found in Exodus 21:18 through 22:17 are structured along lines closely parallel to concepts found in modern tort law jurisprudence. Many of the biblical laws considered here give expression to …

Religion And Race: The Ministerial Exception Reexamined, Ian C. Bartrum

Scholarly Works

This essay is a contribution to the Northwestern University Law Review's colloquy on the ministerial exception, convened following the Supreme Court's decision to hear arguments in Hosanna-Tabor v. EEOC.

The author takes the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. The author offers historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, the author suggests that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.

The First Principles Of Standing: Privilege, System Justification, And The Predictable Incoherence Of Article Iii, Christian Sundquist

Articles

This Article examines the indeterminacy of standing doctrine by deconstructing recent desegregation, affirmative action, and racial profiling cases. This examination is an attempt to uncover the often unstated meta-principles that guide standing jurisprudence. The Article contends that the inherent indeterminacy of standing law can be understood as reflecting an unstated desire to protect racial and class privilege, which is accomplished through the dogma of individualism, equal opportunity (liberty), and “white innocence.” Relying on insights from System Justification Theory, a burgeoning field of social psychology, the Article argues that the seemingly incoherent results in racial standing cases can be understood as …

The Unaviodable Ecclesiastical Collision In Virginia, Isaac A. Mcbeth, Jennifer R. Sykes

Law Student Publications

Section 57-9(A) of the Code of Virginia is a statute that purports to resolve church property disputes. There is, however, a significant amount of controversy as to whether the statute encroaches on the free exercise rights of hierarchical churches located in Virginia and enmeshes Virginia courts in the ecclesiastical thicket. Given the debate surrounding Section 57-9(A) and the controversial shift of several mainstream denominations in matters of substantive church doctrine, Virginia is a fertile breeding ground for church property disputes. Accordingly, the Commonwealth is in the midst of an ecclesiastical crisis. The impact of the crisis is evidenced by the …

Pakistan's Failed Commitment: How Pakistan's Institutionalized Persecution Of The Ahmadiyya Muslim Community Violates The International Covenant On Civil And Political Rights, Qasim Rashid

Law Student Publications

The United Nations (“UN”) adopted the International Covenant on Civil and Political Rights (“ICCPR”) in 1966 and officially implemented it in 1976 to ensure, among other guarantees, that no human is denied his or her right to equal voting, freedom of political association, due process of law, freedom of life, freedom of religion, freedom of speech, and freedom of assembly. The Islamic Republic of Pakistan is among 166 nations that have signed and ratified the ICCPR. Since signing the ICCPR in 2008 and ratifying it in 2010, however, Pakistan has perpetuated state-sanctioned and violent persecution of religious minority groups such …

Religious And Political Virtues And Values In Congruence Or Conflict?: On Smith, Bob Jones University, And Christian Legal Society, Linda C. Mcclain

Faculty Scholarship

A basic tension in the U.S. constitutional and political order exists between two important ideas about the relationship between civil society and the state: (1) families, religious institutions, voluntary associations, and other groups are foundational sources, or “seedbeds,” of virtues and values that undergird constitutional democracy, and (2) these same institutions guard against governmental orthodoxy and overweening governmental power by generating their own distinctive virtues and values and by being independent locations of power and authority. The first idea envisions a comfortable congruence between civil society and government: the values and virtues - and habits and skills - cultivated in …