Law Commons^™

Power, Economics And The 'Islamic Terrorism' Narrative, Alev Dudek

Alev Dudek

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 …

The Return Of The Christian Burial Speech Case, Phillip Johnson

Phillip Johnson

No abstract provided.

Liberalism And Religion

Steven H. Shiffrin

No abstract provided.

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

Charles J. Russo

No abstract provided.

And The Wall Comes Tumbling Down: How The Supreme Court Is Striking The Wrong Balance Between Majority And Minority Rights In Church And State Cases, Alan Garfield

Alan E Garfield

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 …

Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles Baron

Charles H. Baron

The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of "proxy consent" question involved in that case required for its decision "the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's …

Owning Enlightenment: Proprietary Spirituality In The 'New Age' Marketplace, Walter Effross

Walter Effross

This article analyzes recent attempts made by the Arica Institute, the Church of Scientology, and Star's Edge - reaching, in each case, the relevant Circuit Court of Appeals - to apply intellectual property law to prevent the unauthorized dissemination of their spiritual teachings and techniques. As the article details, such concerns have been raised in connection with a wide range of traditional and modern practices, including Zen, Kabbalah, Yoga, Sufism, Christian Science, est, Reiki, the Gurdjieff Work, A Course in Miracles, and Transcendental Meditation. The article draws on a variety of primary sources, including trial transcripts, appellate pleadings, Web sites, …

Religion's Wise Embrace Of Commerce, Michael Helfand

Michael A Helfand

No abstract provided.

The Reality Of Moral Imperatives In Liberal Religion, Howard Lesnick

howard lesnick

This paper uses a classic one-liner attributed to Dostoyoevski’s Ivan Karamozov, "Without God everything is permitted," to explore some differences between what I term traditional and liberal religion. The expansive connotations and implications of Ivan’s words are grounded in the historic association of wrongfulness and punishment, and in a reaction against the late modern challenge to the inexorability of that association, whether in liberal religion or in secular moral thought. The paper argues that, with its full import understood, Ivan’s claim begs critical questions of the meaning and source of compulsion and choice, and of knowledge and belief regarding the …

A Liberalism Of Sincerity: The Role Of Religion In The Public Square, Michael Helfand

Michael A Helfand

This article considers the extent to which the liberal nation-state ought to accommodate religious practices that contravene state law and to incorporate religious discourse into public debate. To address these questions, the article develops a liberalism of sincerity based on John Locke’s theory of toleration. On such an account, liberalism imposes a duty of sincerity to prevent individuals from consenting to a regime that exercises control over matters of core concern such as faith, religion, and conscience. Liberal theory grounds the legitimacy of the state in the consent of the governed, but consenting to an intolerant regime is illegitimate because …

Re-Emerging Equality Traditions Of Justice In The Cultural Roots Of The Egyptian Revolution, Giancarlo Anello, Khaled Qatam

giancarlo anello

For years, modern Egyptian Islamic thinkers have been attempting to define Islamic ideals of social justice and the way in which they have been ignored in the post-colonial period. This paper will discuss and critique the mid-20th century works of theorists of the Muslim Revolution like Abbas Mahmud ‘Aqqad (author of al-dymuqratyah fy al-islam, Democracy in Islam) and Sayyid Qutb (author of al-‘adalah al-ijtima‘iyya fy al-islam, Social Justice in Islam) in order to shape the discourse about the relevance of their theories of democracy, justice and equality for today’s political movements

Litigating Religion, Michael A. Helfand

Michael A Helfand

This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating …

The Genesis Of Rluipa And Federalism: Evaluating The Creation Of A Federal Statutory Right And Its Impact On Local Government, Patricia Salkin, Amy Lavine

Patricia E. Salkin

In 2000, Congress passed, and President Clinton signed, the Religious Land Use and Institutionalized Persons Act (RLUIPA), designed to provide protection from discrimination for the exercise of religion for incarcerated individuals and for those in need of various municipal permits or approvals in order to exercise their religion. With seven years of experience in the courts, this article examines the impact of RLUIPA on local governments across the country through an analysis of how the courts have been interpreting and applying statutory ambiguities and creating inconsistent doctrine in an effort to define terms and implement RLUIPA's protections. Whether an appropriate …

Issues Of Law And Religion In The News -- Amish Beard Cutters, Hate Crimes, And The Limits Of The Commerce Clause, Lorin Geitner

Lorin C. Geitner

Amish are being tried under a Federal Hate Crimes statute in Ohio for cutting the beards of elders in another Amish community. Why such a strange form of assault? Since this is an Amish on Amish crime, does it constitute a hate crime? And is the reliance of the statute on the commerce clause over-reaching, and potentially under-reaching as well?

Social Architecture And The Law, Lorin Geitner

Lorin C. Geitner

The reputation of attorneys has steadily declined over the last 50 years. How can we determine why this has occurred? Given the relatively high reputation of British Barristers, a comparison of US and British court room arrangement and practice may provide some clues, and the heuristic of "critical spatial studies" provides a methodology.

Issues Of Law And Religion In The News -- Hutterites, Lorin Geitner

Lorin C. Geitner

The Hutterites are an Anabaptist group who live communally. This lifestyle has allowed them to compete against private construction firms in Montana. A new law requires the Hutterites to carry workers compensation for their members who work in construction. The Hutterites counter that they already have provisions in their society that provide all the coverage provided by workers compensation. The legislator who sponsored this bill says this bill is needed to provide an even playing field. What are the Hutterites history, beliefs and practices which lead them to believe this is redundant? What are the legal principles involved? Who is …

Issues Of Law And Religion In The News -- Mennonites, Lorin Geitner

Lorin C. Geitner

An ordinance in Mitchell county, Iowa, forbade the use of tractors with steel-rim tires on county roads, for the sake of road preservation. The Groffdale Old Order Mennonites, however, require their members to use just such tires, for religious reasons. When a Mennonite youth received a citation for driving such a tractor on the road, it set off a nearly prototypical Church/State conflict. What do steel-rim tires have to do with religion? And does the county's concern with preserving roads trump this religious practice, or vice versa?

Issues Of Law And Religion, In The News -- Non-Catholic Teachers Fired For Fertility Treatments, Lorin Geitner

Lorin C. Geitner

Two non-Catholic teachers had been fired from Catholic schools, for breaching Catholic doctrine when it comes to acceptable fertility treatments. Has the Catholic Church breached its employment contracts with these teachers? If so, would it still be protected under the ministerial exception?

Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders, Michael A. Helfand

Michael A Helfand

This Article considers a trend towards what I have termed the "new multiculturalism," where conflicts between law and religion are less about recognition and symbolism and more about conflicting legal orders. Nothing typifies this trend more than the increased visibility of religious arbitration, whereby religious groups use current arbitration doctrine to have their disputes adjudicated not in U.S. courts and under U.S. law, but before religious courts and under religious law. This dynamic has pushed the following question to the forefront of the multicultural agenda: under what circumstances should U.S. courts enforce arbitration awards issued by religious courts in accordance …

A Jewish-Sponsored Law School: Its Purposes And Challenges, Howard Glickstein

Howard Glickstein

No abstract provided.

Academic Freedom In Religiously Affiliated Law Schools: A Jewish Perspective. (Symposium On Religiously Affiliated Law Schools), Howard Glickstein

Howard Glickstein

No abstract provided.

Eruv And Establishment, Lorin Geitner

Lorin C. Geitner

An examination of how the Orthodox Jewish practice known as an "eruv", based in Jewish religious law, can help illustrate the tension between the Establishment and Free Exercise clauses of the First Amendment.

Law And Religion – The First Amendment And The Problems Of Alienation, Lorin Geitner

Lorin C. Geitner

A survey of the different patterns of the relationship between of law to religion (and vice versa) in the course of world history, in order to provide historical and legal context and argue for the notion that the United States, truly, a secular society, but rather a religiously pluralistic one.

Theory, Identity, Vocation: Three Models Of Christian Legal Scholarship, William Brewbaker

William S. Brewbaker III

Recognizably Christian scholarship is becoming more commonplace in the American legal academy, yet little systematic attention has been given to fundamental questions of approach. This article highlights moments of continuity and discontinuity between Christian legal scholarship and its secular counterparts. Contrary to the expectations generated by contemporary political debate, the distinctive contribution of Christian legal scholarship is not primarily to provide ammunition for political programs of the right or the left, but to situate law and human legal practices within a larger story about the world. This article develops three models of Christian legal scholarship - theory, identity and vocation. …

Westboro Baptist And The Limits Of Religious Speech, Lorin Geitner

Lorin C. Geitner

A discussion of the role of defense attorneys, the implications of the prosecutorial burden of proof, the Supreme Court case of Phelps v. Snyder, and a corresponding incident in Floyd County Virginia involving the posting of the 10 Commandments in a public school, by different parties, and why there were differing results depending upon the party.

Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield

Alan E Garfield

One of the nation’s more profound and volatile ideological divides is between fundamentalist religious adherents and secular members of society. This divide has been particularly salient in recent years as issues challenging traditional religious morality – abortion, gay marriage, and stem-cell research – have been exploited as wedge issues for political gain. In this Article, I join the efforts of other scholars to find a way to bridge the gap between religious and secular Americans. By focusing on one particularly contentious front in the religious-secular wars – the teaching of intelligent design – I am able to identify a value …

When Religious Practices Become Legal Obligations: Extending The Foreign Compulsion Defense, Michael A. Helfand

Michael A Helfand

The purpose of this article is to fashion a religious compulsion defense as an outgrowth of the legally recognized foreign compulsion defense. Contra the rationale advanced in Employment Division v. Smith, the article argues that the rationale behind the foreign compulsion defense - to protect individuals from conflicting legal norms of competing legal systems - should also apply to situations where religious law and United States law collide. In adopting the criteria of the foreign compulsion defense, a religious compulsion defense would extract individuals from conflicts of law, protecting individuals in the throes of the most intractable of dilemmas.