Law Commons^™

The Constitutional Imagination Of The Mujahidin: A History And Translation Of Two Constitutions Proposed By Afghan Islamist Militias In The 1990s, Shamshad Pasarlay, Clark Lombardi

Washington International Law Journal

No abstract provided.

Queer And Convincing: Reviewing Freedom Of Religion And Lgbtq+ Protections Post-Fulton V. City Of Philadelphia, Arianna Nord

Washington Law Review

Recent increases in LGBTQ+ anti-discrimination laws have generated new conversations in the free exercise of religion debate. While federal courts have been wrestling with claims brought under the Free Exercise Clause of the First Amendment since the nineteenth century, city and state efforts to codify legal protections for LGBTQ+ individuals in the mid-twentieth century birthed novel challenges. Private individuals who do not condone intimate same-sex relationships and/or gender non-conforming behavior, on religious grounds seek greater legal protection for the ability to refuse to offer goods and services to LGBTQ+ persons. Federal and state courts must determine how to resolve these …

Kū Kia‘I Mauna: Protecting Indigenous Religious Rights, Joshua Rosenberg

Washington Law Review

Courts historically side with private interests at the expense of Indigenous religious rights. Continuing this trend, the Hawai‘i State Supreme Court allowed the Thirty- Meter-Telescope to be built atop Maunakea, a mountain sacred to Native Hawaiians. This decision led to a mass protest that was organized by Native Hawaiian rights advocates and community members. However, notwithstanding the mountain’s religious and cultural significance, Indigenous plaintiffs could not prevent construction of the telescope on Maunakea.

Unlike most First Amendment rights, religious Free Exercise Clause claims are not generally subject to strict constitutional scrutiny. Congress has mandated the application of strict scrutiny to …

Ktunaxa Nation V. British Columbia: A Historical And Critical Analysis Of Canadian Aboriginal Law, Jennifer Mendoza

Washington International Law Journal

Aboriginal law is a developing and emerging area of the law in Canada. In fact, Aboriginal rights were not constitutionally protected until the ratification of the Canadian Constitution in 1982. What followed was a series of precedent-setting cases that clarified what “rights” meant under Section 35 of the Constitution, how Aboriginal title and rights could be established, and what duty the federal government had to the First Nations when trying to infringe on those rights. In 2017, the Canadian Supreme Court heard Ktunaxa Nation v. British Columbia, which was the first case to interpret Aboriginal rights under Section 2(a) religious …

Consociationalism Vs. Incentivism In Divided Societies: A Question Of Threshold Design Or Of Sequencing?, Clark B. Lombardi, Pasarlay Shamshad

Articles

Scholarship on constitutional design for post-conflict or divided societies focuses a great deal of attention on two issues: (1) the processes and timing by which constitutional rules should be established and (2) whether constitutions should reflect a consociationalist or incentivist approach to governance. Scholars are increasingly willing to entertain the possibility that constitutions drafted during period of transition from civil war or authoritarianism need not, and often should not, answer immediately all questions that constitutions tend to answer; however, they tend to assume that the question of whether constitutions should be consociationalist or incentivist is one that should not be …

Adjudicating Religious Sincerity, Nathan S. Chapman

Washington Law Review

Recent disputes about the “contraception mandate” under the Affordable Care Act and about the provision of goods and services for same-sex weddings have drawn attention to the law of religious accommodations. So far, however, one of the requirements of a religious accommodation claim has escaped sustained scholarly attention: a claimant must be sincere. Historically, scholars have contested this requirement on the ground that adjudicating religious sincerity requires government officials to delve too deeply into religious questions, something the Establishment Clause forbids. Until recently, however, the doctrine was fairly clear: though the government may not evaluate the objective accuracy or plausibility …

Reply Brief Of Petitioners. Knight V. Thompson, 136 S.Ct. 2534 (2016) (No. 15-999), 2016 U.S. S. Ct. Briefs Lexis 1645, 2016 Wl 1555013+A12, Eric Schnapper, Mark Sabel, Peter Fruin, Randall C. Marshall, Roy S. Haber

Court Briefs

QUESTION PRESENTED Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") prohibits state and local governments from imposing "a substantial burden on the religious exercise of a person residing in or confined to an institution . . . unless the government demonstrates that imposition of the burden on that person": (1) "is in furtherance of a compelling governmental interest," and (2) "is the least restrictive means of furthering that compelling governmental interest."42 U.S.C. § 2000cc-l(a). The Question Presented is: Whether RLUIPA requires that prison officials actually consider and demonstrate a sufficient basis for rejecting widely …

Petion For A Writ Of Certiorari. Knight V. Thompson, 136 S.Ct. 2534 (2016) (No. 15-999), 2016 U.S. S. Ct. Briefs Lexis 542, 2016 Wl 447654, Eric Schnapper, Mark Sabel, Peter Fruin, Randall C. Marshall, Roy S. Haber

Court Briefs

QUESTION PRESENTED In Holt v. Hobbs, 135 S.Ct. 853 (2015), this Court held that the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), renders unlawful an absolute ban on inmates' wearing a beard for religious reasons. The Eleventh Circuit, subsequent to and despite this Court's decision in Holt, rejected a RLUIPA challenge to Alabama's similarly inflexible policy prohibiting all male inmates from wearing long hair for religious reasons. A vast majority of states, the District of Columbia, and all federal prisons accommodate inmates whose religious practices include wearing beards or long hair. The Question Presented is: Whether Alabama's …

Separation Of Religion And State In Japan: A Pragmatic Interpretation Of Articles 20 And 89 Of The Japanese Constitution, Andrew B. Van Winkle

Washington International Law Journal

Article 20 of Japan’s Constitution establishes freedom of religion. To protect this freedom, the provisions of Articles 20 and 89 separate religion from the state to prevent the return of State Shintō. Despite this separation, the Japanese Supreme Court has consistently upheld instances where state entities interact with religious groups. These decisions have raised the ire of numerous academics and legal professionals in and out of Japan who believe that Japan’s constitutional separation requires absolute separation, or at least something more stringent than the Supreme Court has been willing to find. Although this comment rejects the approach taken by the …

Brief Amicus Curiae Of The National Employment Lawyers Association In Support Of Respondents. Hosanna-Tabor Evangelical Lutheran Church And School V. Equal Employment Opportunity Commission, 565 U.S. 171 (2012) (No. 10-553), 2011 U.S. S. Ct. Briefs Lexis 984, Eric Schnapper, Rebecca M. Hamburg

Court Briefs

QUESTION PRESENTED Is the anti-relatiation provision of the Americans with Disabilities Act, 42 U.S.C. 12203, unconstitutional as applied to the claims of respondents?

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 …

Islam, The State And The Constitutional Court In Indonesia, Simon Butt

Washington International Law Journal

Indonesia is home to more Muslims than any other country. Yet it is not an Islamic state and is unlikely to become one, despite the strong and sustained urgings of some Muslim groups. Indonesian Islam is, like Indonesian society itself, dynamic and diverse, accommodating a wide variety of practices and beliefs. One area of contention between conservative Muslims on the one hand, and the state (supported by many more moderate Muslims) on the other, is the extent to which Islamic law should be recognised, applied and enforced by institutions of state. The Indonesian government's response has generally been to limit …

The Anabaptist Conscience And Religious Exemption To Jury Service, Michael Hatfield

Articles

While the concern over religiously devout Americans who wish to serve on juries is a serious one, a potential juror dismissed from service over his or her religiosity suffers a real but relatively abstract damage. The punishment is being sent home when they want to stay.

This Article examines a different issue with more severe consequences: religiously devout citizens who risk being jailed for refusing to serve on a jury. Rather than asking whether Jesus could serve on a jury, this Article addresses whether we should force Jesus to serve if he said God told him not to. More specifically, …

Keeping The Faith: The Rights Of Parishioners In Church Reorganizations, Theresa J. Pulley Radwan

Washington Law Review

Faced with significant potential liability to victims of sexual abuse at the hands of church personnel, four archdioceses and dioceses of the Roman Catholic Church have filed for Chapter 11 bankruptcy protection. The bankruptcy proceedings present a multitude of novel issues, including valuation of tort claims against the church and determination of the property available to pay those claims. While each issue has the potential to affect parishioners of the church, the issue of property ownership may have a particularly strong effect. Under both canon law and state incorporation statutes, an archdiocese or diocese owns all assets of its churches. …

Keeping The Faith: The Rights Of Parishioners In Church Reorganizations, Theresa J. Pulley Radwan

Washington Law Review

Faced with significant potential liability to victims of sexual abuse at the hands of church personnel, four archdioceses and dioceses of the Roman Catholic Church have filed for Chapter 11 bankruptcy protection. The bankruptcy proceedings present a multitude of novel issues, including valuation of tort claims against the church and determination of the property available to pay those claims. While each issue has the potential to affect parishioners of the church, the issue of property ownership may have a particularly strong effect. Under both canon law and state incorporation statutes, an archdiocese or diocese owns all assets of its churches. …

The Influential Legacy Of Dutch Islamic Policy On The Formation Of Zakat (Alms) Law In Modern Indonesia, Arskal Salim

Washington International Law Journal

This article attempts to trace the influence of the colonial legacy in the formation of zakat (alms) policy in modern Indonesia. The article argues that the influence of the Dutch Islamic policy has gradually diminished as the process of Islamization of Indonesia has deepened. As early as the 19th century, Snouck Hurgronje played a key role in developing the Dutch zakat policy, which focused on the colonial government preventing the payment of zakat from being compulsory. During the first two decades after Indonesia's independence in 1945, the zakat policy as derived from colonial times continued without much change. However, by …

Zoned Secular: Seattle's Prohibition Of New Religious Facilities In Industrial Zones Violates The Religious Land Use And Institutionalized Persons Act's "Equal Terms" Rule, Daniel Kirkpatrick

Washington Law Review

The "equal terms" rule of the Religious Land Use and Institutionalized Persons Act (RLUIPA) prohibits federal, state, and local governments from enacting land use regulations that place religious assemblies or institutions on less than equal terms with nonreligious assemblies or institutions. The plain language of RLUIPA makes it clear that the equal terms rule prohibits unequal treatment of religious assemblies and institutions as compared to non-religious assemblies and institutions. RLUIPA's legislative history further reveals that Congress enacted the equal terms rule to counter zoning laws that favor secular assemblies and institutions over religious assemblies and institutions. Accordingly, federal courts have …

Ignore The Rumors—Campaigning From The Pulpit Is Okay: Thinking Past The Symbolism Of Section 501(C)(3), Michael Hatfield

Articles

This Article is enough to ruin many Thanksgiving family dinners. It is about American religion, politics, and taxes. Mostly it is about taxes. As I will explain, this is what sets it apart from the contemporary legal scholarship exploring the campaign restrictions on tax exempt churches. This Introduction identifies the problem addressed in the article, then introduces the contemporary legal scholarship and the alternative approach this article takes.

Part I of this Article introduces the reader to the legal context of "the problem" of churches being unable to campaign if they choose to be Tax Exempt under Section 501 (c) …

Extreme Policy Makeover: Re-Evaluating Current U.S.-Vietnam Relations Under The International Religious Freedom Act, Kevin V. Tu

Washington International Law Journal

Following the signing of the Paris Peace Accord in 1973, the relationship between the United States and Vietnam remained essentially frozen. In 2000, the signing of the United States-Vietnam Bilateral Trade Agreement was an epic step in the normalization of relations. In addition, the BTA was hailed as a means of effectuating positive change in the area of Vietnam's human rights. Unfortunately, the state of religious freedom in Vietnam has deteriorated while economic ties with the United States have strengthened. Despite Vietnam's purported respect for religious freedom, violations continue. Vietnam restricts the practice of religion, detains religious leaders, and tolerates …

When Prisoners Are Weary And Their Religious Exercise Burdened, Rluipa Provides Some Rest For Their Souls, Anne Y. Chiu

Washington Law Review

The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) prohibits state and local governments from substantially burdening a prisoner's exercise of religion unless the government can show that its action is the least restrictive means of furthering a compelling governmental interest. Prior to RLUIPA, courts subjected prisoners' claims of violations of their right to exercise their religion to a "rational-relationship" standard. Because RLUIPA ("the Act") places a "strict scrutiny" standard on government actions burdening prisoners' religious exercise, the Act is a legislative accommodation of religion. Under Lemon v. Kurtzman, legislative accommodations violate the Establishment Clause if their …

In Search Of A Theory Of Cult And Freedom Of Religion In China: The Case Of Falun Gong, Anne S.Y. Cheung

Washington International Law Journal

Cult and anti-cult movements have been high drama ever since the close of the twentieth century. The tragedies caused by some minority religious groups and the corresponding government responses force us to question the meaning of freedom of religion and to confront our societal conviction to upholding our acclaimed constitutional values. This Article examines the fundamental concept of freedom of religion and the tights that it entails in the case of the People's Republic of China. China's recent crackdown on Falun Gong, a seemingly benign breathing exercise group, has been bitterly controversial. The case of Falun Gong illustrates that the …

The First Free Exercise Case, Walter J. Walsh

Articles

Part I of this Article tells the colonial history of religious freedom in New York State from a minority perspective, with specific reference to the secrecy of the confessional-the very practice that would be constitutionally tested in Philips. Part II describes the immediate social and political issues raised by the influx of Irish Catholic refugees into New York City in the wake of the failed United Irish Rebellion of 1798. Part III treats the unfriendly 1811 ruling of the federalist Chief Justice James Kent in People v. Ruggles as representative of the dominant Anglocentric constitutional legacy of imperial Protestant …

Does Free Exercise Mean Free State Funding? In Davey V. Locke, The Ninth Circuit Undervalued Washington's Vision Of Religious Liberty, Derek D. Green

Washington Law Review

In Davey v. Locke, a panel of the United States Court of Appeals for the Ninth Circuit ruled that Washington violated the Free Exercise Clause by refusing to allow a scholarship recipient to use state funds to pursue a theology degree. The court held that the state's scholarship requirements facially discriminated against religion, and that the state's interest in not violating its constitution did not serve as a compelling reason for the discrimination. In so holding, the Davey court ignored Ninth Circuit precedent and embraced a theory of the Religion Clauses at odds with United States Supreme Court jurisprudence. …

The Religious Land Use And Institutionalized Persons Act: An Analysis Under The Commerce Clause, Evan M. Shapior

Washington Law Review

Congress based the Religious Land Use and Institutionalized Persons Act (RLUIPA) on accumulated evidence suggesting that the land use decisions of local governments unfairly burden religious uses. The RLUIPA is narrower in scope than two previous statutes aimed at protecting religious liberty. The United States Supreme Court held the first of these religious liberty statutes unconstitutional, and Congress failed to enact the other. This Comment examines the constitutionality of the RLUIPA under the Commerce Clause and argues that Congress exceeded its Commerce Clause authority because (1) land use regulation does not constitute "economic activity" as defined by the United States …

Falun Gong: An Analysis Of China's National Security Concerns, Kelly A. Thomas

Washington International Law Journal

The Chinese government's brutal crackdown on the Falun Gong spiritual movement stands in marked contrast to its recent acknowledgement of its need to improve its human rights record and repeated avowals to take the legal steps necessary to conform with international human rights treaties. China's leadership has attempted to justify the crackdown, citing both historical reasons and national security concerns. Analysis of China's history demonstrates that repression of anti-government groups has only hardened their resistance. Similarly, the campaign against Falun Gong has failed to stop protests staged by the group's followers. In fact, Falun Gong's expressions of dissent have become …

The Search For A Distinct Religious-Liberty Jurisprudence Under The Washington State Constitution, Katie Hosford

Washington Law Review

Article I, Section 11, of the Washington Constitution, titled "Religious Freedom," provides more protection for free exercise of religion and the separation of church and state than the First Amendment to the U.S. Constitution. Because the state constitution provides broader protection for each right, a natural tension arises between the two rights. However, rather than relying on the text of the state constitution, the Supreme Court of Washington has imposed an entirely federal analysis on free exercise cases brought under Washington law. In addition, the establishment cases under Article I, Section 11, have inconsistently interpreted the language of the state …

The Dissolution Of Aum Shinri Kyô As A Religious Corporation, Thomas Leo Madden

Washington International Law Journal

Because of Aum Shinri Kyô's terrorist attacks using sarin nerve gas, the Japanese government sought to revoke the religious cult's status as a religious corporation under the Religious Corporation Law. The Tokyo District Court found that, in setting up a sarin production facility, Aum had deviated from its purpose as a religious organization and had endangered the public welfare, thereby justifying an order of dissolution. The Tokyo High Court affirmed, but did not reach the issue of whether the dissolution order violated Aum's followers' right to freedom of religion as guaranteed by the Japanese Constitution. In affirming the dissolution order, …

The Undoing Of Mandatory Free Exercise Accommodation—Employment Division, Department Of Human Resources V. Smith, 110 S. Ct. 1595 (1990), Danielle A. Hess

Washington Law Review

The United States Supreme Court has struggled to find a fair and consistent approach to cases in which an individual's religious practice conflicts with a generally applicable law. Prior to Employment Division, Department of Human Resources v. Smith, the Court used a balancing approach to determine whether the state's interests in denying an exemption to a criminal law justified the burden that the law placed on an individual's religious practice. After Smith, the state must show only that the law is generally applicable and does not directly target a religious practice. This new approach underprotects religious conduct because it provides …

Church And State In The States, G. Alan Tarr

Washington Law Review

In many state constitutions, the provisions dealing with the relationship of church and state differ substantially from the federal establishment clause. In this Article, Professor Tarr demonstrates that relying on the state constitutional guarantees may lead to markedly different results than would obtain under the first amendment. He argues that state constitutional provisions very often are ignored, apparently because practitioners mistakenly believe that state provisions merely repeat the strictures of the first amendment. Professor Tarr maintains that this is unfortunate and untrue, because our constitutional system allows a state constitution to provide for less, equal, or greater separation of church …

"Secular Humanism" And The Definition Of Religion: Extending A Modified "Ultimate Concern" Test To Mozert V. Hawkins County Public Schools And Smith V. Board Of School Commissioners, Craig A. Mason

Washington Law Review

This Comment defends an expansive definition of religion which is uniform under the establishment clause and under the free exercise clause. This Comment, to effect this expansion, constructs empirical indicators of religion for use in establishment clause cases. This proposed approach distinguishes science from values and philosophies, and only the latter two might be called "secular humanism." This distinction incorporates longstanding Supreme Court jurisprudence allowing the teaching of evolution." Expanding religious protection under the free exercise clause made a balancing approach necessary.'" Similarly, using an expansive definition of religion to broaden the scope of the establishment clause will require more …