Law Commons^™

The First Religious Charter School: A Viable Option For School Choice Or Prohibited Under The State Action Doctrine And Religion Clauses?, Julia Clementi

Fordham Law Review

After the First Amendment’s Religion Clauses were ratified, church and state became increasingly divorced from one another, as practicing religion became a private activity on which the government could not encroach. This separation, however, was slow, and much credit is owed to the U.S. Supreme Court for its efforts to disentangle the two. One particular area in which the Supreme Court exercised its influence was the U.S. education system; the Court invoked the Religion Clauses and neutrality principles to rid public schools of religious influences and ensure that private religious schools could partake in government programs that were available to …

Second-Best Free Exercise, Christopher C. Lund

Fordham Law Review

The future of the Free Exercise Clause is up in the air. Thirty years ago, in Employment Division v. Smith, the Supreme Court held the Free Exercise Clause only protected against religious discrimination and did not require exemptions from neutral and generally applicable laws.

Yet despite having an official rule against religious exemptions, the Roberts Court has somehow managed to give religious exemptions in case after case. This illustrates Smith’s waning power—the case has become more of an obstacle for courts to work around than a precedent for courts to obey. But these victories have also come to …

Lgbtqia+ Public Accomodation Cases: The Battle Between Religious Freedom And Civil Rights, Jamie Reinah

Fordham Law Review

Protections for LGBTQIA+ Americans have greatly expanded since the U.S. Supreme Court recognized marriage equality in Obergefell v. Hodges, but the debate about whether business owners can refuse to serve LGBTQIA+ couples on religious grounds has grown more bitterly divided. The free exercise of religion is a fundamental constitutional right, and it is strongly protected at both the federal and state levels. At the same time, LGBTQIA+ couples are protected from receiving unequal treatment in public places under state antidiscrimination laws. The clash between religion and LGBTQIA+ rights has culminated in a line of cases that present difficult questions …

The Cost Of Free Speech: Resolving The Wedding Vendor Divide, Victoria Cappucci

Fordham Law Review

As marriage equality becomes fully realized in the United States, business proprietors increasingly refuse to service same-sex weddings on religious grounds. However, at the same time, state laws protect same-sex couples from discrimination in places open to the public. Such competing values have resulted in a line of “wedding vendor” cases. As the cases continue to proliferate, this Note examines when, and to what extent, the otherwise equally important values of free expression and equality should trump one another. This Note analyzes First Amendment compelled speech claims within the line of wedding vendor cases: specifically, whether wedding goods and services …

Gender And Religious Dress At The European Court Of Human Rights: A Comparison Of Șahin V. Turkey And Arslan V. Turkey, Bronwyn Roantree

Fordham Law Review Online

This paper examines the regulation of the religious dress of men and women in two decisions by the European Court of Human Rights: Şahin v. Turkey and Arslan v. Turkey. In Şahin, the Court upheld a ban on the wearing of the Islamic headscarf, an article of clothing worn exclusively by women, at a public university. In Arslan, the Court rejected a ban on the wearing of a type of religious uniform worn only by men who were members of a politically subversive Islamic group. In both cases, the Court asserted that its decision was necessary to …

Lady Justice Cannot Hear Your Prayers, Deborah Ogali

Fordham Law Review

The Islamic finance industry continues to grow quickly as the appetite for everything, from Sharia-compliant home mortgages and car loans to sophisticated financial products, increases. This growth has triggered an interest in sukuk, bond-like financial instruments. And while the international market for sukuk has long been dominated by foreign issuers and English law, the attraction of a niche market compatible with U.S. federal and international securities laws may propel increased participation by U.S. issuers and investors who wish to transact under U.S. federal and state laws. As with all Islamic financial products, sukuk transactions inherently pose a Sharia compliance risk. …

Enemy And Ally: Religion In Loving V. Virginia And Beyond, Leora F. Eisenstadt

Fordham Law Review

Throughout the Loving case, religion appeared both overtly and subtly to endorse or lend credibility to the arguments against racial mixing. This use of religion is unsurprising given that supporters of slavery, white supremacy, and segregation have, for decades, turned to religion to justify their ideologies. Although these views are no longer mainstream, they have recently appeared again in arguments against same-sex marriage and gay and transgender rights generally. What is remarkable in the Loving case, however, is an alternate use of religion, not to justify white supremacy and segregation but instead to highlight the irrationality of its supporters’ claims. …

Recovering Judicial Integrity: Toward A Duty-Focused Disqualification Jurisprudence Based On Jewish Law, Shlomo Pill

Fordham Urban Law Journal

No abstract provided.

The First Amendment: Churches Seeking Sanctuary For The Sins Of The Fathers, Jeffrey R. Anderson, Mark A. Wendorf, Frances E. Baillon, Brant D. Penney

Fordham Urban Law Journal

This article examines whether the Free Exercise Clause or Establishment Clause of the First Amendment, or the judicial abstention doctrine, shields religious institutions from otherwise cognizable tort claims caused by their agents or employees. It concludes that the Constitution does not provide a religious institution with the right or privilege to operate as a law unto itself -- the institution must comply with the law of civil government. Part I provides a brief introduction and background on the First Amendment. Parts II, III, and IV analyze the Free Exercise Clause, judicial abstention doctrine, and the Establishment Clause, respectively, and how …

Catholic Clergy Sexual Abuse Meets The Civil Law, Thomas P. Doyle, Stephen C. Rubino

Fordham Urban Law Journal

This article examines the sexual abuse scandal that has racked the Roman Catholic Church since 1984, focusing in particular on how the Church's authority structure has responded and how the American civil court system has been used by victims to seek redress. It gives an overview of the Church's legal system, Canon Law, and the way that system and the Church leadership have dealt (or failed to deal) with the problem of sexual abuse. Part II takes a "long look back" to the history of sexual abuse and Canon Law before 1984. Part III details how the Church has dealt …

The Collision Of Church And State: A Primer To Beth Din Arbitrarion And The New York Secular Courts, Ginnine Fried

Fordham Urban Law Journal

This Comment analyzes the interaction between secular courts and beth din proceedings (arbitration panels made up of specialists in halacha, or Jewish law). Part I examines the reasons why an independent Jewish religious court system is required and utilized despite the existence of a fair and equitable secular court system. It describes the Jewish legal principles involved, and how they impact both Jewish litigants and lawyers. Part II describes the mechanics of transforming a religious tribunal into a legally binding arbitration panel in New York State. Part III discusses the limited grounds upon which a beth din award may be …

Advocacy And Compassion In The Jewish Tradition, Daniel B. Sinclair

Fordham Urban Law Journal

This essay surveys the Talmudic sources dealing with the issue of advocacy in Jewish law, and highlights the element of compassion that underlies the permissive approach to advocacy in the Talmudic sources. It outlines post-Talmudic developments with a special emphasis on the way in which the medieval authorities synthesized the views of the two Talmuds on the question of advocacy, and how later halakhists pushed this synthesis to its limits in order to pave the way for the emergence of the rabbinical pleader of modern times. This essay concludes with a brief remark on the link between compassion and advocacy …

Assisted Reproduction In Jewish Law, Daniel B. Sinclair

Fordham Urban Law Journal

This Article attempts to untangle Jewish law regarding assisted reproductive technologies (ARTs), namely artificial insemination with husband's sperm, artificial insemination with donor sperm, and in vitro fertilization. The author examines teachings by prominent Jewish law scholars and clarifies basic schools of thought regarding each method. He explores Jewish law prohibitions on incest and adultery and the laws regarding legal parentage and lineage of the child and explains the consequences of ARTs on those laws.

Catholic Teaching And The Law Concerning The New Reproductive Technologies, Helen M. Alvare

Fordham Urban Law Journal

This Article sets forth the fundamental teachings from which the Roman Catholic Chruch derives its positions on New Reproductive Technologies (NRTs). It further demonstrates the application of these teachings to some of the specific medical techniques commonly used in the course of NRTs. The Church's legislative recommendations are then summarized.

The Islamic Viewpoint On New Assisted Reproductive Technologies, Hossam E. Fadel

Fordham Urban Law Journal

This Article gives a brief overview of Islamic views on assisted reproductive technologies (ARTs). Islamic law is applied to ARTs to determine what may be lawful and/or moral and what may be impermissible. The article examines artificial insemination, in vitro fertilization, surrogacy and cloning.

Protestant Perspectives On The Uses Of The New Reproductive Technologies, Cynthia B. Cohen

Fordham Urban Law Journal

This Article explores the emerging positions that Protestants may have on new reproductive technologies (NRTs). Although there is no central teaching, there are main points of agreement among Protestants and other Christians regarding the morality of using reproductive technology. The author examines Protestant teachings on the meaning of procreation, the good of the resulting children and the integrity of family bonds to show that these technologies are generally morally acceptable, but with certain limitations.

Dialogue On The Practice Of Law And Spiritual Values, James F. Henry, Joseph Allegretti, Robert A. Baruch Bush, Dr. Sarah Cobb

Fordham Urban Law Journal

This dialogue focuses on the relationship between religious/moral values and the various methods employed to resolve legal conflicts, with a primary focus on alternative dispute resolution techniques. General topics touched on include the intangible benefits of ADR (such as better relationships, transformative potential, and the effectiveness of apology) and new moral/ethical problems involved with practicing ADR. Joseph Allegretti explores two questions: (1) why Christianity provides a theoretical justification for ADR, and (2) what a Christian approach to ADR might look like. In an essay exploring the Jewish perspective on ADR, Robert Baruch Bush analyzes the Talmud's explicit preference for judges …

A Vocation For Law? American Jewish Lawyers And Their Antecedents, Marc Galanter

Fordham Urban Law Journal

Louis D. Brandeis is the presiding eminence in the story of the encounter of Jewish with the American legal order. In the centuries since Brandeis started practicing law, Jews have flourished exceedingly in both the legal professional mainstream (practitioners, judiciaries, academics) and the public interest sector. Can this extravagant participation in both hemispheres of the world of American lawyering be explained by something unique to the Jewish tradition or experience? This Essay addresses that question by focusing on Brandeis, who manifests in his person both sides of this extraordinary flourishing. Brandeis seems a felicitous path to understanding, not because he …

Vocation As Curse, F. Giba-Matthews, Ofm

Fordham Urban Law Journal

This Essay argues that while legal work as a vocation may have positive effects for society as a whole, as well as overall benefits for the legal profession, vocation could very well hurt the lawyer "called" to take up such a vocation. A vocation is not simply the application of one's religious belieft to the practice of law; rather, it is a "burning fire" in a lawyer's soul which the lawyer "cannot contain." Thus, a lawyer's vocation becomes an overwhelming priority. Part I of this Essay provides an explanation of the biblical underpinnings of vocation through a discussion of the …

To Engage In Civil Practice As A Lawyer, James L. Nolan

Fordham Urban Law Journal

Society can realize the justice it craves through virtuous lawyers doing their jobs well. In this context of the crucially important role lawyers play in society, the claimed spiritual crisis of the lawyer's professional bearings takes on greater concern. This Essay explores some of the dimensions of a spiritual crisis which lawyers now face and suggests how one might more effectively bridge the gap ebtween religious faith and legal practice to better serve clients and society.

Rethinking The Supreme Court's Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine

Fordham Urban Law Journal

Part I of this Article discusses Supreme Court cases prior to 1981, in which the Court first expressed its hands-off approach to deciding questions of religious practice and belief. This Part suggests that in these decisions, as a result of a proper concern for religious autonomy, the Court already began the process of expanding the principle of judicial non-interference, at the cost of sacrificing effective adjudication of important constitutional issues. Part II of this Article critiques the Court's approach in Free Exercise Clause cases, identifying different problems that have arisen as a result of the Court's approach. This Part argues …

Free Exercise And The Attorney/Priest: The Clerical Collar In The Courtroom, Jeffrey Glassman

Fordham Urban Law Journal

One of the more difficult free exercise of religion problems to come to the courts is the conflict that arises when an attorney who is also a ordained Roman Catholic priest claims the right to appear before a criminal jury while wearing his clerical collar. The New York Court of Appeals forbade a priest from wearing his collar, while the New York Supreme Court granted an application by an attorney/priest to wear his collar. This decision was subsequently overruled by the appellate division. This Article examines arguments in favor of allowing a priest to wear his collar. It examines the …