Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Law (20)
- Religion Law (8)
- Constitutional Law (4)
- First Amendment (4)
- Education Law (3)
-
- Family Law (3)
- Human Rights Law (3)
- Social and Behavioral Sciences (3)
- Arts and Humanities (2)
- Health Law and Policy (2)
- Religion (2)
- Sociology (2)
- Bioethics and Medical Ethics (1)
- Communication (1)
- Criminal Law (1)
- Economics (1)
- Housing Law (1)
- International Law (1)
- Journalism Studies (1)
- Labor and Employment Law (1)
- Land Use Law (1)
- Law and Politics (1)
- Law and Society (1)
- Legal History (1)
- Medicine and Health Sciences (1)
- President/Executive Department (1)
- Property Law and Real Estate (1)
- Sociology of Religion (1)
Articles 1 - 21 of 21
Full-Text Articles in Entire DC Network
Abandoning Animus, Robert L. Tsai
Abandoning Animus, Robert L. Tsai
Faculty Scholarship
This Essay presents a preliminary set of arguments against the legal concept of animus grounded in actual practice. After considering the major reasons advanced in support of the animus approach as well as the main objections, I argue that the end of animus may come once we confront the limits of judicial capacity. First, judges have not been willing or able to resort to the animus rationale to call out bigotry where the evidence of hostility is robust. These failures suggest that projects founded upon judicial review to reduce hateful motivations may be overly optimistic. Second, on the occasions the …
Liberalism And The Distinctiveness Of Religious Belief, Abner S. Greene
Liberalism And The Distinctiveness Of Religious Belief, Abner S. Greene
Faculty Scholarship
Finding the appropriate sweet spot for religion’s role in the state and how state action may affect the lives of religious people continues to be elusive. Cécile Laborde’s ambitious book Liberalism’s Religion comes down firmly on the side of seeing religion as not distinctive, even in a liberal democracy. To the extent that nonestablishment and free exercise norms should prevail, they should prevail insofar as we can disaggregate religion into components that it shares with nonreligious belief and practice. In this review essay, I advance a position on which Laborde spends little time in her book — religion is distinctive …
Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain
Can Religion Without God Lead To Religious Liberty Without Conflict?, Linda C. Mcclain
Faculty Scholarship
This Article engages with Ronald Dworkin’s final book, Religion Without God, which proposes to shrink the size and importance of the fierce “culture wars” in the United States between believers and nonbelievers – theists and atheists – by separating out the “science” and “value” components of religion to show these groups that they share a “fundamental religious impulse.” Religion Without God also calls for framing religious freedom as part of a general right to ethical independence rather than a “troublesome” special right for religious people. This article compares the argumentative strategy of Religion Without God with prior Dworkin works, such …
Press Definition And The Religion Analogy, Ronnell Andersen Jones
Press Definition And The Religion Analogy, Ronnell Andersen Jones
Faculty Scholarship
n a Harvard Law Review Forum response to Professor Sonja West's symposium article, "Press Exceptionalism," Professor RonNell Andersen Jones critiques Professor West's effort to define "the press" for purposes of Press Clause exceptions and addresses the weaknesses of Professor West's analogy to Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC in drawing these definitional lines. The response highlights distinctions between Press Clause and Religion Clause jurisprudence and urges a more functional approach to press definition.
Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin
Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin
Faculty Scholarship
Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the …
I'M A Laycockian! (For The Most Part), Jay D. Wexler
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 …
Club Goods And Group Identity: Evidence From Islamic Resurgence During The Indonesian Financial Crisis, Daniel L. Chen
Club Goods And Group Identity: Evidence From Islamic Resurgence During The Indonesian Financial Crisis, Daniel L. Chen
Faculty Scholarship
This paper tests a model in which group identity in the form of religious intensity functions as ex post insurance. I exploit relative price shocks induced by the Indonesian financial crisis to demonstrate a causal relationship between economic distress and religious intensity (Koran study and Islamic school attendance) that is weaker for other forms of group identity. Consistent with ex post insurance, credit availability reduces the effect of economic distress on religious intensity, religious intensity alleviates credit constraints, and religious institutions smooth consumption shocks across households and within households, particularly for those who were less religious before the crisis.
Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks
Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks
Faculty Scholarship
Although formal religious tests for federal office are constitutionally prohibited, they have long been fact of political life in presidential elections. John Kennedy remains the only nonProtestant ever elected President. The "Judeo-Christian tradition" notwithstanding, no major party has ever nominated a Jew for president - let alone a Buddhist, Hindu, Mormon, Muslim, or unbeliever.
Against this electoral history, it was perhaps predictable that mainstream Christian commentators would feel free to legitimate religious attacks on Mitt Romney during the Republican presidential primaries on the ground that Mormonism is a "false" religion. Ironically, however, the Mormon church periodically intervenes in initiative and …
American Civil Religion: An Idea Whose Time Is Past, Frederick Mark Gedicks
American Civil Religion: An Idea Whose Time Is Past, Frederick Mark Gedicks
Faculty Scholarship
From the founding of the United States, Americans have understood loyalty to their country as a religious and not just a civic commitment. The idea of a 'civil religion' that defines the collective identity of a nation originates with Rousseau, and was adapted to the United States Robert Bellah, who suggested that a peculiarly American civil religion has underwritten government and civil society in the United States.
Leaving aside the question whether civil religion has ever truly unified all or virtually all Americans, I argue that it excludes too many Americans to function as such a unifying force in the …
Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray
Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray
Faculty Scholarship
This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.
Book Review: "Human Dignity And Bioethics: Essays Commissioned By The President's Council On Bioethics, Leslie Meltzer Henry
Book Review: "Human Dignity And Bioethics: Essays Commissioned By The President's Council On Bioethics, Leslie Meltzer Henry
Faculty Scholarship
The President’s Council on Bioethics frequently invokes -- but never defines -- the notion of human dignity in its reports on caregiving, stem-cell research, cloning, assisted reproduction, and biomedical enhancement. This article argues that the Council employs the language of dignity so loosely in its policy recommendations that the word is often nothing more than a rhetorical trump card to reject policies at odds with the Bush administration’s perspective. This article examines how the Council uses the word dignity; explores competing philosophical, theological, and political understandings of the word; and suggests ways in which a more productive dialogue about dignity's …
Shifting Out Of Neutral: Intelligent Design And The Road To Nonpreferentialism, Kelly S. Terry
Shifting Out Of Neutral: Intelligent Design And The Road To Nonpreferentialism, Kelly S. Terry
Faculty Scholarship
No abstract provided.
The Role Of The 'Natural Family' In Religious Opposition To Human Rights Instruments, Linda C. Mcclain
The Role Of The 'Natural Family' In Religious Opposition To Human Rights Instruments, Linda C. Mcclain
Faculty Scholarship
This chapter examines how the vision of the natural family articulated by several prominent conservativereligious organizations in the United States shapes their opposition to certain human rights instruments. TheUnited Nations' 1989 Convention on the Rights of the Child seems to reflect an advance in internationalhuman rights formulations and to have generated a high degree of formal commitment by governments, as evidenced by its quick and virtually universal ratification. However, the United States stands nearly alone innot having ratified the Convention, and the religious groups examined in this chapter strenuously urge that it should not do so, lest it undermine the …
The Role Of Religion In The Schiavo Controversy, Barbara A. Noah
The Role Of Religion In The Schiavo Controversy, Barbara A. Noah
Faculty Scholarship
The brief life of Theresa Marie Schiavo and the dispute over her end-of-life care captured public awareness in a way that few such cases have done. The reasons for the nearly unprecedented public attention to her case are two-fold. The decision by various religious groups and governmental entities to intervene in the dispute surrounding her care in order to promote conservative causes (some of them only tenuously related to her particular medical circumstances) prompted unusually intense media coverage. In addition, the ensuing publicity surrounding Theresa's tragic condition--an unexpected cardiac arrest left her in a permanent vegetative state at the age …
Family Constitutions And The (New) Constitution Of The Family, Linda C. Mcclain
Family Constitutions And The (New) Constitution Of The Family, Linda C. Mcclain
Faculty Scholarship
This article looks at a topic that has received little attention in the legal literature: constitution making by families. Of what interest is it to constitutional law and family law, and to those interested in the state of the family, that families undertake to draft - and are urged by assorted experts on the family to draft - family constitutions (by analogy to the U.S. constitution) and family mission statements (by analogy to corporate mission statements)? This article contends that this reported trend is a fruitful topic of inquiry, since it bears on important questions about the dynamics of family …
'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain
'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain
Faculty Scholarship
Does marriage, in the United States, need the protection of an amendment to the federal constitution, which would enshrine marriage as only the union of a man and a woman? In answering "yes" to this question, sponsors and supporters of the Federal Marriage Protection Amendment (FMPA), in the House of Representatives and the Senate, have made various appeals to the gender complementarity of marriage: (1) opposite-sex marriage is part of "God's created order;" (2) procreation is the purpose of marriage and has a tight nexus with optimal mother/father parenting; (3) marriage bridges the "gender divide" by properly ordering heterosexual desire …
Too Much, Too Little: Religion In The Public Schools, Jay D. Wexler
Too Much, Too Little: Religion In The Public Schools, Jay D. Wexler
Faculty Scholarship
The current state of religion in the nation's public schools is odd indeed. On the one hand, the courts have consistently held that public school teachers may not lead their students in an organized prayer. Yet on the other hand, most people seem to agree that there is no problem with those same teachers leading their students in the Pledge of Allegiance, an exercise that asks students on a daily basis, not only to explicitly recognize the existence of a single god, but also to link the nation's very identity to that highly contested theological proposition. Likewise, despite the fact …
Intelligent Judging: Evolution In The Classroom And The Courtroom, George J. Annas
Intelligent Judging: Evolution In The Classroom And The Courtroom, George J. Annas
Faculty Scholarship
Religious arguments have permeated debates on the role of the law in medical practice at the beginning and the end of life. But nowhere has religion played so prominent a role as in the century-old quest to banish or marginalize the teaching of evolution in science classes. Nor has new genetics research that supports evolutionary theory at the molecular level dampened antievolution sentiment. Requiring public-school science teachers to teach specific religion-based alternatives to Darwin's theory of evolution is just as bad, in the words of political comedian Bill Maher, as requiring obstetricians to teach medical students the alternative theory that …
Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler
Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler
Faculty Scholarship
The controversy over teaching evolution in public schools is once again hot news. Ever since the Supreme Court decided in 1987 that Louisiana could not constitutionally require teachers to give equal time to teaching creation science and evolution, critics of evolution have adopted a variety of new strategies to change the way in which public schools present the subject to their students. These strategies have included teaching evolution as a "theory" rather than as a fact, disclaiming the truth of evolutionary theory, teaching arguments against evolution, teaching the allegedly nontheistic theory of intelligent design instead of creationism, removing evolution from …
Preparing For The Clothed Public Square: Teaching About Religion, Civic Education, And The Constitution, Jay D. Wexler
Preparing For The Clothed Public Square: Teaching About Religion, Civic Education, And The Constitution, Jay D. Wexler
Faculty Scholarship
Although law and religion scholars have long argued about whether American culture marginalizes religious belief, many important indicators suggest that religion indeed plays a prominent role in contemporary American life. America is an extremely religious nation. Polls consistently show that about ninety percent of Americans continue to believe in God, and both church attendance and membership remain at high levels. This religiosity, moreover, spills out into the public square. A great many Americans rely on religious reasons when thinking and talking about public issues. Ninety percent of the members of Congress, by one report, consult their religious beliefs when voting …
A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger
A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger
Faculty Scholarship
Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …