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Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson Sep 2016

Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson

Katharine Jackson

This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.


Catholic Social Teaching, The Right To Immigrate And The Right To Regulate Borders: A Proposed Solution For Comprehensive Immigration Reform Based Upon Catholic Social Principles, Chad G. Marzen, William Woodyard Jan 2016

Catholic Social Teaching, The Right To Immigrate And The Right To Regulate Borders: A Proposed Solution For Comprehensive Immigration Reform Based Upon Catholic Social Principles, Chad G. Marzen, William Woodyard

Chad G. Marzen

In the past decade, policymakers from various perspectives have discussed and debated proposals to reform America’s immigration system. This article discusses not only the history of the Catholic legal and intellectual tradition’s contribution to social teaching on the issue of immigration, but emphasizes the development of two strands of Catholic thought: the right to immigrate, and the right to regulate borders. Applying the Catholic legal and intellectual tradition, this article provides a proposal for immigration reform that incorporates key tenets of Catholic social thought.


The Isis Crisis And The Development Of International Humanitarian Law, Johan D. Van Der Vyver Oct 2015

The Isis Crisis And The Development Of International Humanitarian Law, Johan D. Van Der Vyver

Johan D van der Vyver

ABOUT THE ARTICLE This article identifies the rules of international humanitarian law that have a bearing on the Israeli offensive in Gaza. It first of all attempts to establish whether or not Israel remained an Occupying Power after its disengagement from the Gaza Strip in 2005. If due to the control Israel continued to exercise over border crossings, electricity and water supplies and the like, Israel is found to be de facto in occupation of Gaza, the Hamas responses would qualify as a war of liberation, which in terms of Protocol I to the Geneva Conventions of 12 August 1949 …


Stemming The Hobby Lobby Tidal Wave: Why Rfra Challenges To Obama's Executive Order Prohibiting Federal Contractors From Discriminating Against Lgbt Employees Will Not Succeed, Kayla Higgins Aug 2015

Stemming The Hobby Lobby Tidal Wave: Why Rfra Challenges To Obama's Executive Order Prohibiting Federal Contractors From Discriminating Against Lgbt Employees Will Not Succeed, Kayla Higgins

Kayla Higgins

On July 21, 2014 President Obama released Executive Order 13672, which expressly aimed to provide for a uniform policy for the Federal Government to prohibit discrimination and take further steps to promote economy and efficiency in Federal Government procurement by prohibiting discrimination based on sexual orientation and gender identity. Some commentators believe that the order “could be the next battleground” for the competing views of religious leaders and liberals when it comes to how to weigh religious liberty against other priorities. However, there are two main reasons why the most recent executive order should not crumble under the Hobby Lobby …


The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad Jul 2015

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …


Latest Surveys And Polls On Bascule Of Religion And Belief In Both The United Kingdom And Iran, Mohamad Ali Ali Yousefkhani Mr May 2015

Latest Surveys And Polls On Bascule Of Religion And Belief In Both The United Kingdom And Iran, Mohamad Ali Ali Yousefkhani Mr

Mohamad Ali Ali Yousefkhani

Numerous surveys indicate that the proportion of individuals who do not hold religious beliefs is steadily increasing. Religions and beliefs are notoriously difficult to measure, as they are not fixed or innate, and therefore any poll should be primarily treated as an indication of beliefs rather than a concrete measure. However, one of the foremost respected measures of religious attitudes is the annual British Social Attitudes Survey, further details of the latest report may be found on NatCen’s website


Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson May 2015

Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson

Eric Alan Isaacson

Recent discussions about the threat that same-sex couples hypothetically pose to the religious freedom of Americans whose religions traditions frown upon same-sex unions have largely overlooked the possibility that same-sex couples might have their own religious-liberty interest in being able to marry. The General Synod of the United Church of Christ brought the issue to the fore with an April 2014 lawsuit challenging North Carolina laws barring same-sex marriages. Authored by a lawyer who represented the California Council of Churches and other religions organizations as amici curiae in recent marriage-equality litigation, this article argues that although marriage is a secular …


Verboten: Forbidden Homeschooling In Germany And Its Conflict With International Religious Freedom., Jacob A. Aschmutat Mar 2015

Verboten: Forbidden Homeschooling In Germany And Its Conflict With International Religious Freedom., Jacob A. Aschmutat

Jacob A Aschmutat

Germany maintains strict compulsory education laws that prevent families from educating their children at home. Germany strictly enforces these laws, with little regard to the families’ incentives to remove their children from the public schools. As such, these laws contain no exemption for families interested in homeschooling for religious purposes. The absence of such an exemption seems to contradict the internationally recognized right to religious freedom, a right concretely granted through three international treaties that Germany has both signed and ratified. Several decisions by the European Court of Human Rights give little to no credence to the notion of religious …


Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello Mar 2015

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of …


Free Exercise And The Definition Of Religion: Confusion In The Federal Courts, Mark Strasser Jan 2015

Free Exercise And The Definition Of Religion: Confusion In The Federal Courts, Mark Strasser

Mark Strasser

The United States Supreme Court has sent mixed messages about what constitutes religion for free exercise purposes. The Court’s failure to offer clear criteria has resulted in widely differing interpretations in the lower courts, resulting in dissimilar treatment of relevantly similar cases. Further, some of the circuit courts employ factors to determine what qualifies as religious that are much more restrictive than the factors employed by the Court.

This article describes some of the differing approaches to defining religion offered in the circuits, noting that one of the approaches adopted across a few circuits not only mischaracterizes the Supreme Court’s …


Definitions, Religion, And Free Exercise Guarantees, Mark Strasser Jan 2015

Definitions, Religion, And Free Exercise Guarantees, Mark Strasser

Mark Strasser

The First Amendment to the United States Constitution protects the free exercise of religion. Non-religious practices do not receive those same protections, which makes the ability to distinguish between religious and non-religious practices important. Regrettably, members of the Court have been unable to agree about how to distinguish the religious from the non-religious—sometimes, the implicit criteria focus on the sincerity of the beliefs, sometimes the strength of the beliefs or the role that they play in an individual’s life, and sometimes the kind of beliefs. In short, the Court has virtually guaranteed an incoherent jurisprudence by sending contradictory signals with …


Islamic Theory Of Conflict Of Commercial Law: A Proposition, Anowar Zahid Aug 2014

Islamic Theory Of Conflict Of Commercial Law: A Proposition, Anowar Zahid

Anowar Zahid

The parties to an international commercial/financial contract may choose a single law or a combination of law like English law and Islamic law to settle their dispute that may arise therefrom. At the same time, they may choose a forum (law court or arbitration tribunal) belonging to an Islamic jurisdiction. Such a choice of law and forum deserve a theoretical enquiry from Islamic perspective since it gives rise two important issues. First, if the choice is a single secular law and it conflicts with Shari'ah law in full or in part, then how the forum will reconcile the conflicts. It …


Money From Syar’Iah Perspective, Anowar Zahid Aug 2014

Money From Syar’Iah Perspective, Anowar Zahid

Anowar Zahid

In history, paper money systems have always wound up with collapse and economic chaos. Today, the usage of fiat currency, a form of paper money and the correlate bank money has brought about wide spread hardships and sufferings upon many sectors of society and communities. Following in depth syari’ah analysis, the only conclusion that is possible is that fiat currency and bank money are illegal. They are, in reality, introduced through manipulative collaborations between governments and bank cartels, as they defy the long established sanction against riba’ (usury), operate at the advantage of a selected group in society to the …


Corporations And Religious Freedom: Hobby Lobby Stores - A Missed Opportunity To Reconcile A Flawed Law With A Flawed Health Care System, Matthew A. Melone Aug 2014

Corporations And Religious Freedom: Hobby Lobby Stores - A Missed Opportunity To Reconcile A Flawed Law With A Flawed Health Care System, Matthew A. Melone

Matthew A. Melone

On June 30, 2014, the Supreme Court held, in Burwell v. Hobby Lobby Stores, Inc., that the requirement imposed on employer group health insurance plans to provide coverage for certain contraceptives unduly burdened the free exercise rights of three closely-held corporations in violation of the Religious Freedom Restoration Act of 1993 ( RFRA ). The contraception mandate was imposed by regulations implementing the Patient Protection and Affordable Care Act, itself a very controversial piece of legislation a part of which was upheld recently by the Court in a perhaps a case more controversial than Hobby Lobby Stores. RFRA was enacted …


Narrow Tailoring, Compelling Interests, And Free Exercise: On Aca, Rfra And Predictability, Mark Strasser Aug 2014

Narrow Tailoring, Compelling Interests, And Free Exercise: On Aca, Rfra And Predictability, Mark Strasser

Mark Strasser

The holding in Burwell v. Hobby Lobby Stores, Incorporated was narrow in scope—closely held, for-profit corporations must be afforded an exemption from providing insurance coverage for a few types of contraception if the corporation has religious objections to providing that coverage. In addition, the exemption requirement was based on a construction of federal statute rather than on the Constitution’s free exercise guarantees. Both the narrowness of the holding and the Court’s express disavowal that it was offering a constitutional analysis might make the opinion appear relatively inconsequential. However, because the opinion changes the focus and standards of federal law and …


Natural Law, Natural Rights, And Same Sex Marriage, Shannon Holzer Jun 2014

Natural Law, Natural Rights, And Same Sex Marriage, Shannon Holzer

Shannon Holzer

ABSTRACT The Definition of Rights and Same-Sex Marriage The claim that same-sex couples have the right to be married needs to be explained according to particular theories of rights. This presents a problem for same-sex marriage (SSM) advocates for two reasons. First, if SSM advocates suggest that they have a natural right to be married (as rights were understood by Thomas Jefferson in the Declaration of Independence), then they have the burden to prove that this is the case. Yet, Natural Rights entail Natural Law (NL), and NL tends to support teleological definitions of marriage. Thus, the SSM advocate must …


God And Guns: The Free Exercise Of Religion Problems Of Regulating Guns In Churches And Other Houses Of Worship, John M. A. Dipippa Mar 2014

God And Guns: The Free Exercise Of Religion Problems Of Regulating Guns In Churches And Other Houses Of Worship, John M. A. Dipippa

John M. A. DiPippa

The article demonstrates that the cases raising religious liberty challenges to state regulation of weapons in houses of worship reveal the persistent problems plaguing religious liberty cases. First, these cases illustrate the difficulties non-mainstream religious claims face. Courts may not understand the religious nature of the claim or they may devalue claims that do not seem “normal” or “reasonable.” This is compounded how few religious liberty claimants, especially non-mainstream religions, win their cases. Second, the cases are part of the larger debate about how easy it should be to get judicially imposed religious exemptions from general and neutral laws. Uncritically …


When Art Becomes Free: On Artistic In-Expression & Personal Convictions, Amir H. Khoury Mar 2014

When Art Becomes Free: On Artistic In-Expression & Personal Convictions, Amir H. Khoury

Amir Khoury

In this paper I argue that just as there are moral rights in copyright law, which secure attribution and integrity, so too, there should be 'inverse' moral rights that can protect artists from being impelled or compelled to create in the first place. This research comes against the backdrop of one of the most contentious issues in the Western world today, that pertaining to same-sex marriage. But the discussion applies to all other fields where creativity finds itself in a battle over personal convictions. In my view, the inverse moral rights construct is the true reflection of the extent of …


Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino Feb 2014

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Frederick Mark Gedicks

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is somehow absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent. The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What …


A "Bare ... Desire To Harm?" Marriage And Catholic Conscience Post - Windsor, Helen M. Alvare Jan 2014

A "Bare ... Desire To Harm?" Marriage And Catholic Conscience Post - Windsor, Helen M. Alvare

helen m alvare

No abstract provided.


The Right To An Exclusively Religious Education – The Ultra-Orthodox Community In Israel In Comparative Perspective, Gila Stopler Jan 2014

The Right To An Exclusively Religious Education – The Ultra-Orthodox Community In Israel In Comparative Perspective, Gila Stopler

Gila Stopler

The ultra-Orthodox Jewish community in Israel has its own separate education system which is funded by the state and in which boys are given an exclusively religious education with almost no exposure to secular subjects or to civic education. At the same time that the Israeli Supreme Court was scheduled to rule that the state may not continue to fund ultra-Orthodox private schools that do not teach the national core curriculum the Israeli parliament passed the Unique Cultural Educational Institutions Act which upholds the right of the ultra–Orthodox community to give their boys an exclusively religious education funded by the …


Religious Victory Over The Affordable Care Act? Possible Recourse For The Employee Of The Religious Employer, Jacqueline Prats Nov 2013

Religious Victory Over The Affordable Care Act? Possible Recourse For The Employee Of The Religious Employer, Jacqueline Prats

Jacqueline M Prats

In 2012, the Supreme Court upheld the Patient Protection and Affordable Care Act (ACA). Even as the Court deliberated, a number of for-profit employers prepared to challenge the law—not the Act as a whole, but a specific part: the requirement that insurance plans cover contraceptives for women, free of co-pay or other cost-sharing. Although their companies were secular, these business owners claimed that the “contraception mandate” violated not only their religious beliefs, but also those of their companies. They challenged the ACA under both the Free Exercise Clause of the First Amendment and a federal statute called the Religious Freedom …


The Disincorporation Proclamation: Emancipating The Establishment Clause From The Fourteenth Amendment, Martin Wishnatsky Oct 2013

The Disincorporation Proclamation: Emancipating The Establishment Clause From The Fourteenth Amendment, Martin Wishnatsky

Martin Wishnatsky

No abstract provided.


Texas Cheerleaders And The First Amendment: Can You Cheer For God At A Football Game?, Brett A. Geier Sep 2013

Texas Cheerleaders And The First Amendment: Can You Cheer For God At A Football Game?, Brett A. Geier

Brett A Geier

The Kountze High School Cheerleaders in Kountze, Texas last year placed religious messages on run-through banners at the pre-game ceremonies for its football team. When district officials directed the cheerleaders to cease placing the messages on the banners, the cheerleaders sought relief under the Free Exercise Clause and free speech doctrine. In the spring of 2013, the District Court enjoined the school from preventing the cheerleaders from placing religious messages on the banners stating that the act did not violated the Establishment Clause. This particular case has multiple issues that must be addressed: First Amendment conflict; free speech fora, religious …


"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell Sep 2013

"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell

Frederick Mark Gedicks

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked Establishment Clause limits on such exemptions. The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion—that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …


Corporate “Soul”: Legal Incorporation Of Catholic Ecclesiastical Property In The United States - A Historical Perspective, Vicenç Feliú Sep 2013

Corporate “Soul”: Legal Incorporation Of Catholic Ecclesiastical Property In The United States - A Historical Perspective, Vicenç Feliú

Vicenç Feliú

This work is a revision and update of a study carried out in 1933 by Monsignor Patrick J. Dignan. Dignan’s purpose in his study was to outline the history of how the Roman Catholic Church secured laws for the protection of church property in accordance with the hierarchical nature of the Church. The purpose of the present article is to bring up to date Dignan’s work and complete a survey of the law in its present state. The article analyzes the differences in the law since the original survey to determine if Dignan’s conclusion that the Church should operate to …


Islamic Flextime, Liaquat Ali Khan Aug 2013

Islamic Flextime, Liaquat Ali Khan

Ali Khan

Islamic flextime is derived from a divine decree that convenience is the organizing principle of cosmic construction. Rigid temporal frameworks restrict freedom and may even impede human happiness, social harmony, and economic efficiency. This essay explains the foundation of Islamic temporality. Islam teaches that human beings can use temporality but they have no control over time, just as they can benefit from sunlight but cannot conquer the sun. A flexible notion of temporality facilitates the performance of obligations, without repudiating the core concepts of punctuality and time commitments. Islamic flextime is an accommodation principle that respects individual needs and mitigates …


Cracking The Code: Amending Canon Law To Exclude Sexual Abuse Offenders From Roman Catholic Ordination, Hannah C. Dugan J.D. Aug 2013

Cracking The Code: Amending Canon Law To Exclude Sexual Abuse Offenders From Roman Catholic Ordination, Hannah C. Dugan J.D.

Hannah C. Dugan J.D.

Abstract: In 2002, a public scandal broke in the United States revealing the depth of Roman Catholic clerical sex abuse, and exposing the breadth of failed episcopal response to victim complaints. Many civil, criminal, religious and bankruptcy court matters have been pursued to bring justice for victims and survivors. However, the Church’s Code of Canon Law, that lists specifically who may not be ordained, does not exclude sexual abuse offenders from holy orders. This article discusses legal and extra-legal remedies in the wake of the sexual abuse scandal, and argues for amending the Code of Canon Law so that the …


Anatomy Of The Reasonable Observer, Jessie Hill Aug 2013

Anatomy Of The Reasonable Observer, Jessie Hill

Jessie Hill

The “reasonable observer”—the fictional person from whose perspective we are to judge whether a governmental display or practice violates the Establishment Clause—has been under fire for decades. Primarily, critics argue that the reasonable observer, as conceived by the Supreme Court, is incapable of representing a community perspective because he does not sufficiently resemble a flesh-and-blood person. This criticism can be further articulated as two specific complaints: first, that too much knowledge is imputed to the reasonable observer, making him more omniscient than the average passerby; and second, that the reasonable observer, like the average judge, is biased toward a majoritarian …


Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill Aug 2013

Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill

Shlomo C. Pill

This paper considers the viability of autonomous-text constitutionalism, a constitutional interpretive and adjudicative theory based on Hans Georg-Gadamer’s philosophical hermeneutics. As the paper explains, this theory is premised on the subjectivity of all interpretive activity; it admits the legitimacy of a wide spectrum of reasonable interpretations of the Constitution, each given their unique character by the dialectical merging of experiential horizons between the fixed text and individual interpreter. This theory embraces a plurality of constitutional meanings in theory, limited by the need for unity in national spheres of constitutional practice. Such practical certainty is achieved by our empowering judicial institutions …