Religion Law Commons^™

Brief For Prof. Leslie C. Griffin Et Al. As Amici Curiae In Support Of Respondents, Hosanna-Tabor Evangelical Lutheran Church And School V. E.E.O.C., Leslie C. Griffin

Supreme Court Briefs

No abstract provided.

Does A Broad Free Exercise Right Require A Narrow Definition Of Religion, 39 Hastings Const. L.Q. 357 (2012), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions. The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.

Reaction to Smith was largely negative, and legislative and state court responses followed, seeking to restore strict scrutiny as the appropriate …

Our Debt To De Vitoria: A Catholic Foundation Of Human Rights, Robert J. Araujo S.J.

Faculty Publications & Other Works

No abstract provided.

A Natural Law Approach To An Issue Of The Day: A Critique Of The (Equality) Justification For Same Sex Marriage, Robert J. Araujo S.J.

Faculty Publications & Other Works

No abstract provided.

Islam In The Mind Of American Courts, Marie Failinger

Faculty Scholarship

This article surveys references to Islam and Muslims in American court opinions from 1800 to 1960. It argues that American judges as a group portray an ambivalent attitude toward Muslims, some treating Islam disparagingly or as an exotic and fanciful religion, and others emphasizing the religious equality that Muslims deserve

Religious Neutrality In The Early Republic, Jud Campbell

Law Faculty Publications

Governmental neutrality is the heart of the modern Free Exercise Clause. Mindful of this core principle, which prevents the government from treating individuals differently because of their religious convictions, the Supreme Court held in Employment Division v. Smith that a neutral law can be constitutionally applied despite any incidental burdens it might impose on an individual’s exercise of religion. Conscientious objectors such as Quakers, for instance, do not have a constitutional right to be exempt from a military draft. Thus, neutrality now forms both the core and the outer limit of constitutionally guaranteed religious freedom. Judged according to founding-era views, …

Bridging The Great Divide--A Response To Linda Greenhouse And Reva B. Siegel's Before (And After) Roe V. Wade: New Questions About Backlash, Lolita Buckner Inniss

Publications

This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry focuses on what factors are implicated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. By naming party politics and the Catholic Church, Greenhouse and Siegel posit two crucial elements that shaped the abortion debate. I assert, however, that what is not discussed in their Article is the way numerous other factors have figured into …

Forgiveness In Islamic Ethics And Jurisprudence, Russell Powell

Faculty Articles

Some commentators characterize the relationship between Islam and other religions as a clash of cultures. Deep seated senses of harm, whether arising from the Crusades or 9/11, make the process of intercommunal engagement particularly challenging. However, some contemporary Muslim scholars propose a new paradigm for constructive interaction with non-Muslim communities that is authentically rooted in Islamic jurisprudential and textual traditions. The paper explores a number of potential starting points for intercommunal toleration, forgiveness, and reconciliation within Islamic tradition. Islamic jurisprudence contains deep commitments to forgiveness and reconciliation in its textual traditions (the Quran and Sunna), in its classical jurisprudence (particularly …

Is The Middle East Moving Toward Islamism After The Arab Spring? The Case Study Of The Egyptian Commercial And Financial Laws, Radwa S. Elsaman, Ahmed Eldakak

Richmond Journal of Global Law & Business

The first parliamentary elections that followed the Egyptian Revolution witnessed an unprecedented success for Islamists as they secured an overwhelming majority of seats in parliament, suggesting that they may intend to amend many laws to bring parliament into compliance with Islamic Shari’a. This article addresses legal challenges that will face the new majority if they decide to Islamize laws and regulations related to business and finance. Particularly, the article discusses Islamic money theory, trade, banking systems, consumer protection, insurance, competition, and tax systems. The article analyzes Egyptian business and finance laws to examine whether they comply with Islamic law. It …

Religion As Rehabilitation? Reflections On Islam In The Correctional Setting, Spearit

Articles

This essay is the keynote lecture from the Muslims in the United States and Beyond symposium at Whittier Law School. The work reflects on the state of research into Islam in prison, including the religion's historic role in supporting inmate rehabilitation and providing a means for coping with life as a prisoner and on the outside.

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.

Reutter’S The Law Of Public Education, Charles J. Russo

Educational Leadership Faculty Publications

This textbook-casebook incorporates recent developments in education law into its conceptual framework by offering updated analysis of major topics in education law. With new material in all of its sixteen chapters, the book includes significant updates on church-state relations, employee rights, and student rights.

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah Gerwig-Moore

Articles

In the summer of 2001, as a graduate student in law and theology, I began work on a master’s thesis that examined the predicament of men of faith on San Quentin’s Condemned Row. I was working in the California Appellate Project—mostly assisting with direct appeals and state habeas petitions on behalf of men under a death sentence—when a colleague guided me into theological conversations with some of our clients. On Condemned Row, they waited—up to five years to be assigned a court-appointed appellate attorney, on judges’ rulings, and to find whether the legal system would ultimately exact the penalty it …

Selling Land And Religion, Eang L. Ngov

Faculty Scholarship

Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object. Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the …

Conscientious Objection To Creating Same-Sex Unions: An International Analysis, Bruce Macdougall, Elsje Bonthuys, Kenneth Mck. Norrie, Marjolein Van Den Brink

All Faculty Publications

In jurisdictions that recognize same-sex marriages and unions, the question arises as to the extent to which civic officials who normally preside at such unions can refuse such participation for religious reasons. This paper examines this issue in the context of four jurisdictions: Scotland, Canada, the Netherlands and South Africa. What is striking is how different is the process of reaching a resolution in each jurisdiction, though the actual result might be the same. This difference arises because of the jurisdiction-specific reasons why same-sex marriages and unions are recognized, how they are recognized, the status of the officers who preside …

Some Reflections On Fundamental Questions About The Original Understanding Of The Establishment Clause, Kent Greenawalt

Faculty Scholarship

This chapter begins with an analysis of Everson v. Board of Education, where it argues that the although the original intent of the Establishment Clause and the Fourteenth Amendment should be given some weight, the original intent should not be determinative. The chapter rejects the argument that the Establishment Clause was exclusively designed to prevent the federal government from interfering with state establishments. While federalism concerns may have been one such purpose, the Establishment Clause also necessarily prevented the federal government from establishing religion in the District of Columbia, on federal territories, and on federal property — including embassies …

Who Owns The Soul Of The Child?: An Essay On Religious Parenting Rights And The Enfranchisement Of The Child, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

At common law, and (for most of the nation's history) under state statutory regimes, the authority of the parent to direct the child's upbringing was a matter of duty, not right, and chief among parental obligations was the duty to provide the child with a suitable education. It has long been a legal commonplace that at common law the parent had a "sacred right" to the custody of his or her child, that the parent's right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on …

Liberty Of The Exercise Of Religion In The Peace Of Westphalia, Gordon A. Christenson

Faculty Articles and Other Publications

This essay honors my dear friend of half a century, Burns Weston. In it, I take a fresh look at the backdrop and structure of toleration and religious freedom in the Peace of Westphalia of 1648 and in the American Constitution, with special focus on a recent unanimous Supreme Court decision of first impression. That important decision protects inner church freedoms in ecclesiastical employment, the so-called "ministerial exception" to federal and state employment discrimination laws.

"Of all the great world religions past and present," writes the noted historian Perez Zagorin, "Christianity has been by far the most intolerant." Violence and …

Limiting Principles And Empowering Practices In American Indian Religious Freedoms, Kristen A. Carpenter

Publications

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress's subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was …

Oklahoma's Save Our State Amendment: Two Issues For The Appeal, John T. Parry

Oklahoma Law Review

No abstract provided.