Law Commons^™

Why Do Citizens Litigate Over The Posting Of The Ten Commandments? A Case Study From Tennessee, Ross Astoria

Ross Astoria

In recent years the federal courts have experienced an increase in litigation over a state’s display of the Decalogue. Common explanations for this increase in litigation refer to general political and sociological categories, such as “fundamentalism” and “urbanization,” while abstracting from the actual intentions of individuals attempting to display the Decalogue. To identify these intentions, I provide a detailed case study of three instances of pro-Decalogue advocacy in Tennessee. In this case study, pro-Decalogue advocates situate their political efforts within a narrative of American decline. This narrative is a jeremiad in which the Supreme Court is the origin and agent …

Divorce And Polygamy In Tanzania, Rachel Howland, Ashley Koenen

Rachel J Howland

This Article explores the unique legal issues surrounding polygamous marriage and divorce in mainland Tanzania, and submits that the Law of Marriage Act of 1971 (LMA) should be amended to include a provision that governs co-wives’ property interests in the case of divorce. Moreover, it proposes awareness-raising efforts to increase legal literacy and to promote the rights of co-wives. Under Section 10(1) of the Act, a marriage is defined as “the voluntary union of a man and a woman, intended to last for their joint lives,” and may either be monogamous or polygamous (or potentially polygamous). Further, under Section 57, …

(Dis)Owning Religious Speech, Jessie Hill

Jessie Hill

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore somewhat troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality. The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as …

Why Do Citizens Litigate Over The Posting Of The Ten Commandments?, Ross Astoria

Ross Astoria

In recent years the federal courts have experienced an increase in litigation over a state’s display of the Decalogue. Common explanations for this increase in litigation refer to general political and sociological categories, such as “fundamentalism” and “urbanization,” while abstracting from the actual intentions of individuals attempting to display the Decalogue. To identify these intentions, I provide a detailed case study of three instances of pro-Decalogue advocacy in Tennessee. In this case study, pro-Decalogue advocates situate their political efforts within a narrative of American decline. This narrative is a jeremiad in which the Supreme Court is the origin and agent …

The Myth Of Church-State Separation, David E. Steinberg

David E. Steinberg

The Myth Of Church-State Separation

by David E. Steinberg

Abstract

This article asserts that the church-state separation interpretation of Establishment Clause history is simply wrong. When they enacted the First Amendment, the framers were focused on the first five words of the amendment, which read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Establishment Clause guaranteed that the federal government would not interfere in state regulation of religion – whatever form that state regulation took. Rather than enacting the Establishment Clause to mandate a separation of church …

Saving Their Own Souls: How Rluipa Failed To Deliver On Its Promises, Sarah L. Gerwig-Moore

Sarah L Gerwig-Moore

The accompanying article explores the evolution of religious free exercise claims as considered under the First Amendment, Religious Freedom Restoration Act (RFRA) and now the Religious Land Use and Institutionalized Persons Act (RLUIPA). My Master of Theological Studies thesis explored questions of free exercise among death row inmates at San Quentin Prison in California. Now, nearly ten years later, I explore whether RLUIPA has made the kind of inroads we expected and hoped for.

Unfortunately—due in major part to federal legislation (PLRA) curtailing civil lawsuits by prisoners—RLUIPA’s impact has been limited at best. Examining court decisions from across the states …

Let Charities Speak: 501(C)(3) Charitable Organizations After Citizens United, Paul D. Weitzel

Paul D. Weitzel

This paper argues that tax deductible charities have a constitutional right to speak about politics. 501(c)(3) organizations include all tax deductible charities, including religious groups. Citizens United v. Federal Election Commission abrogated the ban on political speech by 501(c)(3) organizations by rejecting the reasoning in Regan v. Taxation with Representation of Washington. Regan found that 501(c)(3) organizations could be prohibited from speaking because they would still be able to speak through affiliate organizations. Citizens United rejected this argument when applied to for-profit corporations, and that reasoning applies equally to non-profit organizations. Citizens United also rejected the distinction between subsidies and …

Dr. King’S Speech: Surveying The Landscape Of Law And Justice In The Speeches, Sermons, And Writings Of Dr. Martin Luther King Junior, Carlton Waterhouse

Carlton Waterhouse

ABSTRACT The belief that an essential relationship exists between law and justice has been recognized since the time of the ancient Greeks. In fact, the concept extends well beyond Western philosophy and jurisprudence. Distinct from other aspects of justice, the relationship between law and justice considers the nature of law and its dictates as well as the responsibility of citizens to obey it. Although Dr. Martin Luther King, Jr. lacked the developed legal analysis of jurisprudence scholars, he made a meaningful contribution to the intellectual discourse of his time by forcing the discussion on the broader society and centering it …

Religious Exemption Statutes: Betrayest Thou Me With A Statute?, Shirley D. Howell

Shirley D. Howell

This Article analyzes the causal connection between religious treatment exemption statutes and child deaths. Further, the Article develops a nexus between partial immunity statutes and wrongful prosecutions of religious parents

Religious Exemption Statutes: Betrayest Thou Me With A Statute?, Shirley D. Howell

Shirley D. Howell

This Article addresses the causal connection between religious treatment statutes and child deaths. The Article differs from others on this topic in that it also develops a nexus between exemption statutes and wrongful prosecutions of religious parents

Religious Exemption Statutes: Betrayest Thou Me With A Kiss?, Shirley D. Howell

Shirley D. Howell

This Article addresses the causal relationship between religious treatment statutes and child deaths. Further, the Article explores the nexus between such statues and unwarranted prosecutions of parents who rely upon such statutes.

Justice Stevens, Religion, And Civil Society, Gregory P. Magarian

Gregory P. Magarian

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his 35 years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he flatly opposed exempting religious believers from laws that interfered with their religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with disdain for religion. In this article, Professor …

Essay: Infinity Of Law, Ali Khan

Ali Khan

At a given point in time, law is finite and its constitutive norms can be mostly identified with certainty. Despite its finitude, however, law is also infinite because the number of future additions and subtractions to the legal system is incalculable. As a general matter, law faced with infinite causes and consequences opts for legally manufactured finitism. Concerned with contracts, decedent’s estate, patents, searches and seizures, and other areas of law, practical law requires finite facts and finite laws in order to structure transactions and resolve disputes. Practical law shuns the infinite and courts finitude. The principle of finitude, however, …

King And The Crits: Exploring The Length And Limits Of Dr. Martin Luther King Junior’S Vision Of Legal Justice, Carlton Waterhouse

Carlton Waterhouse

ABSTRACT The notion of legal justice has been recognized since the time of the ancient Greeks and the concept extends well beyond Western philosophy and jurisprudence. Distinct from other types of justice, legal justice addresses the nature of law and its dictates as well as the responsibility of citizens to obey it. Although Dr. Martin Luther King, Jr. lacked the developed legal analysis of jurisprudence scholars, Dr. King made a meaningful contribution to jurisprudence discourse of his time by opening the discussion to the broader society and centering it on a critical issue of his day – racial segregation. This …

Islamic Legal Authority In A Non-Muslim Society: Designing The Islamic Credit Union Of Bellevue, Washington, Todd Williams

Todd Williams

This Article examines the current state of Islamic law within a community of Muslims in the United States as it relates to Shari’a-compliant financial products. After briefly reviewing the history of Islamic finance and Islamic authority structures within the United States, I rely on interviews with multiple parties involved in the establishment of one of the first Islamic credit unions in the United States to explore the development of Islamic law within American regulation and cultural mores. I examine the authority structure present among Muslims in the Puget Sound area, and I examine the qualities that define a credible religious …

Islamic Legal Authority In A Non-Muslim Society: Designing The Islamic Credit Union Of Bellevue, Washington, Todd Williams

Todd Williams

This Article examines the current state of Islamic law within a community of Muslims in the United States as it relates to Shari’a-compliant financial products. After briefly reviewing the history of Islamic finance and Islamic authority structures within the United States, I rely on interviews with multiple parties involved in the establishment of one of the first Islamic credit unions in the United States to explore the development of Islamic law within American regulation and cultural mores. I examine the authority structure present among Muslims in the Puget Sound area, and I examine the qualities that define a credible religious …