Law Commons^™

State Regulation Of Religious Education, Neal Devins

Neal E. Devins

No abstract provided.

Religion And For-Profit Corporations: A Real Issue Hidden By Flimsy Arguments, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Thoughts On Religious Discrimination From The Cairo Geniza, Nathan B. Oman

Nathan B. Oman

No abstract provided.

The Need For A Law Of Church And Market, Nathan B. Oman

Nathan B. Oman

This Essay uses Helfand and Richman’s fine article to raise the question of the law of church and market. In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought for the …

International Legal Experience And The Mormon Theology Of The State, 1945-2012, Nathan B. Oman

Nathan B. Oman

No abstract provided.

The Forum Of Conscience: Applying Standards Under The Free Exercise Clause, Paul Marcus

Paul Marcus

The 1973 Supreme Court decision in Wisconsin v. Yoder reenforced and amplified the Court's earlier holding in Sherbert v. Verner that the free exercise clause of the first amendment requires the state to render substantial deference to religiously motivated behavior in the application of its laws and regulatory schemes. In this article, Mr. Marcus traces the evolving standards of free exercise doctrine and observes that the "balancing test" which has resulted from that evolution requires still further refinement to give religious freedom its full constitutional due. The author then illustrates how the new standards of free exercise might be applied …

Where's The Beef?, Stanley Fish

Stanley Fish

A key concern of the papers written for this conference is the relationship between religious beliefs and secular beliefs of the kind that carry with them deep ethical obligations. Are these systems of belief essentially the same or are they different in important respects? The question is typically posed abstractly, and I thought it might be useful to have before us an example of religious belief and the demands that attend it. The example is taken from the beginning of John Bunyan’s The Pilgrim’s Progress. Christian, Bunyan’s protagonist, has suddenly become aware that his salvation is imperiled, and he is …

The Influence Of Religion On The Criminal Behavior Of Emerging Adults, Christopher Salvatore, Gabriel Rubin

Gabriel Rubin

Recent generations of young adults are experiencing a new life course stage: emerging adulthood. During this ‘new’ stage of the life course, traditional social bonds and turning points may not be present, may be delayed, or may not operate in the same manner as they have for prior generations. One such bond, religion, is examined here. Focusing on the United States, emerging adulthood is investigated as a distinct stage of the life course. The criminality of emerging adults is presented, a theoretical examination of the relationship between religion and crime is provided, the role of religion in emerging adults’ lives …

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes

Wayne R. Barnes

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that …

Reconsidering Christianity As A Support For Secular Law: A Final Reply To Professor Calhoun, Wayne R. Barnes

Wayne R. Barnes

This symposium has revolved around Professor Calhoun’s article, which posits that it is completely legitimate, in proposing laws and public policies, to argue for them in the public square based on overtly religious principles. In my initial response, I took issue with his argument that no reasons justify barring faith-based arguments from the public square argument. In fact, I do find reasons justifying the prohibition of “faith-based,” or Christian, arguments in the public square—and, in fact, I find such reasons within Christianity itself. This is because what is being publicly communicated in Christian political argumentation is that if citizens comply …

Separation Of Church And State: Jefferson, Lincoln, And The Reverend Martin Luther King, Jr., Show It Was Never Intended To Separate Religion From Politics, Samuel W. Calhoun

Samuel W. Calhoun

This Essay argues that it’s perfectly fine for religious citizens to openly bring their faith-based values to public policy disputes. Part II demonstrates that the Founders, exemplified by Thomas Jefferson, never intended to separate religion from politics. Part III, focusing upon Abraham Lincoln’s opposition to slavery, shows that religion and politics have been continuously intermixed ever since the Founding. Part IV, emphasizing the Reverend Martin Luther King, Jr., argues that no other reasons justify barring faith-based arguments from the public square.

Is Religion A Non-Negotiable Aspect Of Liberal Constitutionalism?, Bruce Ledewitz

Bruce Ledewitz

Religion And Child Custody, Margaret Brinig

Margaret F Brinig

This piece draws upon divorce pleadings and other records to show how indications of religion (or disaffiliation) that appear in custody agreements and orders (called “parenting plans” in both states studied) affect the course of the proceedings and legal activities over the five years following divorce filing. Some of the apparent findings are normative, but most are merely descriptive and some may be correlative rather than caused by the indicated concern about religion. While parenting plans are accepted by courts only when they are in the best interests of the child (at least in theory), the child’s independent religious needs …

Law, Religion, And Politics: Understanding The Separation Of Church And State, Richard Garnett

Richard W Garnett

Professor Richard Garnett, of University of Notre Dame Law School, presented on the topic Law, Religion, and Politics: Understanding the Separation of Church and State. This workshop was presented as part of the Hesburgh Lecture Series through the Alumni & Friends of University of Notre Dame and was co-sponsored by the Notre Dame Alumni Club of Miami. This workshop examined how to understand the Constitution's "separation of church and state" and what it requires of religious believers and institutions.

Common Schools And The Common Good: Reflections On The School-Choice Debate, Richard W. Garnett

Richard W Garnett

No abstract provided.

A Quiet Faith? Taxes, Politics, And The Privatization Of Religion, Richard W. Garnett

Richard W Garnett

The government exempts religious associations from taxation and, in return, restricts their putatively political expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well-suited nor to be trusted with this kind of line-drawing. What's more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion - i.e., that it is a private matter - and of its proper place - i.e., in the private sphere, not …

International Law And Religion In Latin America: The Beagle Channel Dispute, M C. Mirow

M. C. Mirow

In 1978, an Argentine diplomat proposed a method of defusing a territorial dispute that very nearly sparked off a war between Argentina and Chile, It,was an offer calculated to be rejected by Chile, and yet Chile’s immediate response was “Agreed” - a response so unthinkable to Argentina that within hours its military Junta revoked the power of the Foreign Minister and the President to sign the agreement it had just proposed. In December 1978, the countries were quickly moving towards a war that, if waged, would most likely have engulfed much of Latin America. The Vatican, however, intervened and brought …

Corporations, Taxes, And Religion: The Hobby Lobby And Conestoga Contraceptive Cases, Steven Willis

Steven J. Willis

Beginning in 2013, the federal government mandated that general business corporations include contraceptive and early abortion coverage in large employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act. So far, courts have been reluctant to hold corporations have religious rights of their own; as a …

A Statute Is Worth A Thousand Words: Same Sex Marriage And Rfra, Daniel Korda

Daniel Korda

This article explores the effectiveness of the Religious Freedom Restoration Act as a defense for individuals with religious objections towards servicing same sex marriages. Specifically, this article (a) evaluates if the Federal Government has a compelling interest to promote equal accommodations for same sex marriages and (b) considers if "private" individuals suing private parties for refusing to service their marriage are in fact "public" plaintiffs, as the enforcement of laws banning marital discrimination have traditionally been enforced by the State.

Is It Unconstitutional To Prohibit Faith-Based Schools From Becoming Charter Schools?, Stephen D. Sugarman

Stephen D Sugarman

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for …

Liberalism And Religion

Steven H. Shiffrin

No abstract provided.

Religion, School, And Judicial Decision Making: An Empirical Perspective, Michael Heise, Gregory C. Sisk

Michael Heise

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service …

Hostility Toward Religion And The Rise And Decline Of Constitutionally Protected Religious Speech, Ralph Mawdsley, Charles Russo

Charles J. Russo

No abstract provided.

An Essay On Christian Constitutionalism: Building In The Divine Style, For The Common Good(S), Patrick Mckinley Brennan

Patrick McKinley Brennan

Theocracy is a matter of growing global concern and therefore of renewed academic interest. This paper answers the following question: "What would a Christian constitution, in a predominantly Christian nation, look like?" The paper was prepared for presentation as the Clark Lecture at Rutgers School of Law (Camden), where papers answering the same question with respect to Jewish and Islamic constitutions and cultures, respectively, were also presented. A Christian constitution would not have as its aim the comparatively anodyne -- and ultimately futile -- business of introducing more "Judeo-Christian values" into the life of the typical nation state. The paper …

Religious Exemptions, Marriage Equality, And The Establishment Of Religion, Nancy J. Knauer

Nancy J. Knauer

The advent of nationwide marriage equality has sparked a robust debate over the extent of religious liberties and the limits of civil rights protections. As public opinion regarding LGBT individuals and the families they form has evolved, religious beliefs that once served as the basis for law and policy have been increasing marginalized. Various efforts have been made to protect religious objectors who continue to believe that marriage is only between one man and one woman. For example, all of the states that had enacted marriage equality legislation included exceptions for clergy and religious organizations to ensure that they would …

Religious Institutionalism, Implied Consent And The Value Of Voluntarism, Michael A. Helfand

Michael A Helfand

Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions—exemplified by recent Supreme Court decisions such as Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby—stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. This Article aims to provide a framework for analyzing the claims of religious institutions by grounding those claims in the principle of voluntarism. On such an account, religious institutions deserve protection because …

The Challenge Of Co-Religionist Commerce, Michael A. Helfand, Barak D. Richman

Michael A Helfand

This Article addresses the rise of “co-religionist commerce” in the United States—that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, co-religionist commerce requires all the legal support necessary to sustain all other commercial relationships. Contracts must be enforced, parties must be protected against torts, and disputes must be reliably adjudicated.

Under current constitutional doctrine, co-religionist commercial agreements must be translated into secular terminology if there are to be judicially enforced. However, religious goods and services often cannot be accurately translated without religious terms …

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

Institutional Autonomy And Constitutional Structure, Randy J. Kozel

Randy J Kozel

This Review makes two claims. The first is that Paul Horwitz’s excellent book, "First Amendment Institutions," depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's argument — and, …

Veiled Discrimination, Sahar F. Aziz

Sahar F. Aziz

Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. An employer’s workplace rules that define professionalism, therefore, are his prerogative and defined by the demands of the marketplace. Underlying this conclusion is the false premise that objective and neutral factors shape modern notions of professionalism. To the contrary, professionalism is a subjective concept dependent on the decision makers’ worldview, norms, values, and definitions of propriety. Employees who belong to the employer’s social group or fall within society’s majority are advantaged as minimal effort …