Law Commons^™

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.

Steady As She Goes: The 2016-17 Term Of The Us Supreme Court, Miller W. Shealy Jr.

Miller W. Shealy Jr.

No abstract provided.

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 …

Law's Religion: Rendering Culture, Benjamin L. Berger

Benjamin L. Berger

This article argues that constitutional law's inability to deal with religion in a satisfying way flows, in part, from its failure to understand religion as, in a robust sense, culture. Once one begins to understand the Canadian constitutional rule of law itself as a cultural form, it becomes apparent that law renders religion in a very particular fashion, and that this rendering is a product of law's symbolic categories and interpretive horizons. This article draws out the elements of Canadian constitutionalism's unique rendering of religion and argues that, although Canadian constitutionalism claims to understand religion as a culture, this is …

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.

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 …

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 …

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 …

Liberalism And Religion

Steven H. Shiffrin

No abstract provided.

Catechism Or Imagination: Is Justice Scalia's Judicial Style Typically Catholic, Donald L. Beschle

Donald L. Beschle

No abstract provided.

God Bless The Child?: The Use Of Religion As A Factor In Child Custody And Adoption Proceedings, Donald L. Beschle

Donald L. Beschle

No abstract provided.

An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero

Victor C. Romero

The so-called Religious Right's reaction to Lawrence v. Texas has been both powerful and negative, characterizing the case as an assault on the traditional conception of marriage and family life. This essay is an attempt to present a different Christian view. Modeled on the life and teachings of Jesus, this perspective celebrates the Lawrence case as consistent with God's call to social justice for the oppressed. It also outlines a Christian sexual ethic that lifts up genuine, monogamous, committed love between two individuals, whether of the same or opposite sex.

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

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 …

Integration Of And The Potential For Islamic Radicalization Among Ethnic Turks In Germany, Alev Dudek

Alev Dudek

In spite of ongoing improvements, integration of ethnic Turks in Germany remains a challenge from the dominant culture perspective, whereas a deeply ingrained institutional and everyday racism and the lack of legal protection against discrimination pose a challenge to full participation of ethnic Turks from another perspective. In an increasingly xenophobic Europe, particularly Germany, an increase in potential for religious and nationalist radicalization in different groups including ethnic Turks is becoming more and more evident. This increase in radical attitudes is not necessarily caused by a lack of integration, as evidenced among well-integrated individuals.

In view of recent developments toward …

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

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 …

Crimes In The Name Of Honour By Prof. Vibhuti Patel, Professor Vibhuti Patel

Professor Vibhuti Patel

Crimes in the Name‘Honour’ Marriage and Spousal Selection: Choices beyond Caste, Endogamy and Religion by Vibhuti Patel Director, Centre for Study of Social Exclusion & Inclusive Policy, Professor and Head, Department of Economics, SNDT Women’s University, Mumbai-400020 Email: vibhuti.np@gmail.com Mobile-9321040048 Summary Crimes in the name of ‘honour’ are on a rise in our country. Both rural as well as urban areas are gripped with instances of horrific crimes where young citizens of our country are being killed for exercising their democratic right of choosing their life partners. The democratic minded people of our country are both shocked and distressed by …

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.

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

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 …

Toward A New Separation Of Church And State: Implications For Analogies To Last Year's Supreme Court Decision In Hobby Lobby By This Year's Decision In Obergefell V. Hodges, Vincent Samar

Vincent J. Samar

No abstract provided.

The French Law "Marriage For All" A Lot Of Noise, And Then?, Frank S. Giaoui

Frank S. Giaoui

Upon a recent decision of the Federal Supreme Court, the USA has become the 15th country in the World to act marriage as a civil right for same-sex couples. Just two years before, in a very different constitutional environment, France acted an equivalent law including adoptive filiation. France had to overcome a long debate at the parliament and passionate reactions among the various secular and religious constituencies of its society. This article tends to address three main questions: How does the law actually change the family environment of same-sex couples? Why the most willing legislators advised by the most competent …

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

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 …