Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 82

Full-Text Articles in Law

Church And State And Child Endangerment, Raymond C. O'Brien Jan 2020

Church And State And Child Endangerment, Raymond C. O'Brien

Scholarly Articles and Other Contributions

As media in the United States revealed the number of minors sexually abused by clergy, the gravity of the offenses, and the inability to prosecute the offenders, a second offense was revealed. Gradually it was illustrated that bishops and their diocesan administrators knew of credible sexual crimes against children committed by clergy and they responded by protecting offenders, ignoring victims, and knowingly reassigning credibly accused clergy to other placements where they could endanger additional minors. In response to these developments the United States Conference of Catholic Bishops published policies to protect children, enacted norms to be followed in each diocese ...


Administrative Power And Religious Liberty At The Supreme Court, Mark L. Rienzi Jan 2019

Administrative Power And Religious Liberty At The Supreme Court, Mark L. Rienzi

Scholarly Articles and Other Contributions

The Supreme Court has recently seen an increase in the number of religious exercise cases in which the conflict was caused by an act of administrative power, rather than an act of legislative power. There are probably several reasons for this increase, including the growth, size, and flexibility of the administrative state, political convenience, and the fact that administrators tend to be specialists who may be unaware of or undervalue competing interests like religious liberty.

While the sheer size, reach, flexibility, and specialization of the administrative state means we will likely continue to see more religious exercise conflicts caused by ...


Religious Organizations As Partners In The Global And Local Fight Against Human Trafficking, Mary Graw Leary Jan 2018

Religious Organizations As Partners In The Global And Local Fight Against Human Trafficking, Mary Graw Leary

Scholarly Articles and Other Contributions

This paper explores the role of religious organizations as effective partners in the fight to end modern day slavery. As a crime with both global and local dimensions, trafficking must be combatted with tools that are both global and local. Such tools include the world’s religions and religious organizations. They have been addressing human trafficking for decades, and through their work with the poor, immigrants, and sexually exploited, they possess significant knowledge of the manifestations of this form of exploitation and can be important stakeholders in combating it. The paper concludes by offering several recommendations for how policymakers can ...


Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Mark L. Rienzi Jan 2018

Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Mark L. Rienzi

Scholarly Articles and Other Contributions

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme will ...


Two Aspects Of Liberty, John H. Garvey Jan 2016

Two Aspects Of Liberty, John H. Garvey

Scholarly Articles and Other Contributions

Liberty in the constitutional sense is always a right against state interference (a “freedom from”). The First Amendment begins by saying that “Congress shall make no law”; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a “freedom to”): to speak, to assemble, to practice religion, to get married, etc. So “freedom from” and “freedom to” are always parts of the same idea, just as “flying from” and “flying to” are aspects of the same airplane trip. Freedom is always the right to do ...


Laudato Si’ And Care For Our Common Home: What Does It Mean For The Legal Profession?, Lucia A. Silecchia Jan 2016

Laudato Si’ And Care For Our Common Home: What Does It Mean For The Legal Profession?, Lucia A. Silecchia

Scholarly Articles and Other Contributions

Pope Francis’s recent encyclical, Laudato Si’ (“Praised Be You”), has been one of the most widely anticipated papal documents in recent memory. It has also received far more popular commentary than would be expected of a papal encyclical. Yet, while Laudato Si’ has been widely dubbed “the climate change” encyclical, it is far broader than that. It is also a far-reaching analysis of a number of political, economic, social and legal issues, in addition to being an extensive exposition on human duties toward creation.

In the text of this encyclical, there are also some important lessons to be gleaned ...


“Social Love” As A Vision For Environmental Law: Laudato Si’ And The Rule Of Law, Lucia A. Silecchia Jan 2016

“Social Love” As A Vision For Environmental Law: Laudato Si’ And The Rule Of Law, Lucia A. Silecchia

Scholarly Articles and Other Contributions

In the years of his still-young papacy, Pope Francis has often spoken and written about ecological responsibility, addressing both the Catholic and global communities in his exhortations on environmental matters. In June of 2015, he released his most extensive exposition on these issues in his encyclical letter, Laudato Si: On Care for Our Common Home.In this wide-ranging encyclical, Pope Francis expressed a fascinating paradox with respect to law and ecology. On the one hand, Laudato Si’ contains a stunningly enthusiastic endorsement of a strong local, national and, in particular, international legal system empowered to impose strict environmental and economic ...


Fool Me Twice: Zubik V. Burwell And The Perils Of Judicial Faith In Government Claims, Mark L. Rienzi Jan 2016

Fool Me Twice: Zubik V. Burwell And The Perils Of Judicial Faith In Government Claims, Mark L. Rienzi

Scholarly Articles and Other Contributions

This article proceeds in three parts. Part I examines the three government concessions that made the Supreme Court’s Zubik decision possible and how those concessions ultimately revealed that it is possible to protect both contraceptive access and religious liberty. Part II discusses how the circuit courts were brought to emphatically adopt positions the government would ultimately abandon under the slightest pressure. Part III concludes with some key lessons lower courts should take from Zubik to better protect the integrity of both the court system and religious-liberty laws.


Substantive Due Process As A Two-Way Street: How The Court Can Reconcile Same-Sex Marriage And Religious Liberty, Mark L. Rienzi Jan 2015

Substantive Due Process As A Two-Way Street: How The Court Can Reconcile Same-Sex Marriage And Religious Liberty, Mark L. Rienzi

Scholarly Articles and Other Contributions

Last month, the potential conflict between same-sex marriage and religious liberty prompted death threats, arson threats, and the temporary closure of a small-town pizzeria in Indiana. The restaurant’s owner had admitted to a reporter that she could not cater a hypothetical same-sex wedding because of her religious beliefs (even though she otherwise serves gay customers in her restaurant). Threatened with violence over her unpopular religious belief, the owner was forced to close the restaurant, uncertain if she could ever reopen.

Leading up to oral argument in the same-sex marriage cases, it was reasonable to wonder whether the Indiana episode ...


Pope Francis And The Vocation Of The Lawyer: Reflections On Service And Responsibility, Lucia A. Silecchia Jan 2015

Pope Francis And The Vocation Of The Lawyer: Reflections On Service And Responsibility, Lucia A. Silecchia

Scholarly Articles and Other Contributions

Through the years, Catholic lawyers have had many opportunities and invitations to reflect on their profession as a vocation due to the guidance that can be found in Sacred Scripture, the examples of saints who were themselves members of the legal profession, the teachings of church leaders, and the insights of religious writers on the vocation of the lawyer, to name but a few.

More recently, Pope Francis has also offered guidance as to what a life in the law might mean and what might characterize the vocation to practice law today. This guidance is not to be found in ...


Rluipa: Re-Aligning Burdens Of Proof, Clarifying Freedoms, And Re-Defining Responsibilities, George P. Smith Ii, Philip M. Donoho Jan 2015

Rluipa: Re-Aligning Burdens Of Proof, Clarifying Freedoms, And Re-Defining Responsibilities, George P. Smith Ii, Philip M. Donoho

Scholarly Articles and Other Contributions

Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of Human Resources v. Smith in 1990, Congress plunged headlong, dragging along with it a judiciary charged with enforcement of a mandate only defined ambiguously. Thus, in 2004 the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed and heralded as a legislative sum certain — a “clear” articulation of Congress’ balancing of local zoning prerogative with idiosyncratic religious use. It has proved anything but; for, since its passage, the results of litigation have remained resolutely immune to coherent explanation, as the Federal Circuit ...


“A Witness First Lives The Life He Proposes:” Evangelization And The Catholic Lawyer, Lucia A. Silecchia Jan 2015

“A Witness First Lives The Life He Proposes:” Evangelization And The Catholic Lawyer, Lucia A. Silecchia

Scholarly Articles and Other Contributions

This essay was presented at the lecture for legal professionals in Baltimore, Maryland, on May 21, 2015. The roots of the word evangelization are, literally, in the words that mean “to bring good news.” We live in a world that craves good news and, by virtue of our Baptism, all of us – lawyers included – are called to bring good news to a world that, despite all appearances to the contrary, aches for good news and deeply yearns to know the God from whom all good news comes, and to whom all good news leads. I am convinced that there is ...


On "Unease" And "Idealism": Reflections On Pope Benedict Xvi's Educating Young People In Justice And Peace And Its Message For Law Teachers, Lucia A. Silecchia Jan 2013

On "Unease" And "Idealism": Reflections On Pope Benedict Xvi's Educating Young People In Justice And Peace And Its Message For Law Teachers, Lucia A. Silecchia

Scholarly Articles and Other Contributions

Pope Benedict XVI recently wrote about the challenges facing those who have the responsibility for the education of the next generation. His insights, expressed last year, were addressed not simply to a Catholic audience but to all who look to the future and see the obligation to train young people "in justice and peace" to be a noble vocation and one solution to some of the difficulties that face the modern world. Although it was not directed to, or intended primarily for, law professors, the document has much to say to those whose vocation lies in legal education. This essay ...


Unequal Treatment Of Religious Exercises Under Rfra: Explaining The Outliers In The Hhs Mandate Cases, Mark L. Rienzi Jan 2013

Unequal Treatment Of Religious Exercises Under Rfra: Explaining The Outliers In The Hhs Mandate Cases, Mark L. Rienzi

Scholarly Articles and Other Contributions

Ongoing conflict over the contraceptive mandate promulgated by the Department of Health and Human Services ("HHS") has resulted in more than two dozen lawsuits by profit-making businesses and their owners seeking protection under the Religious Freedom Restoration Act ("RFRA"). To date, the businesses and their owners are winning handily, having obtained preliminary relief in seventeen of the cases, and being denied relief in only six. Last month, in fact, a panel of the D.C. Circuit Court of Appeals took the extraordinary step of reconsidering and reversing its own prior ruling and granting a preliminary injunction to a business seeking ...


God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi Jan 2013

God And The Profits: Is There Religious Liberty For Money-Makers?, Mark L. Rienzi

Scholarly Articles and Other Contributions

Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.

This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

Many ...


Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark L. Rienzi Jan 2013

Neutral No More: Secondary Effects Analysis And The Quiet Demise Of The Content-Neutrality Test, Mark L. Rienzi

Scholarly Articles and Other Contributions

When the Supreme Court introduced the “secondary effects” doctrine to allow for zoning of adult businesses, critics fell into two camps. Some, like Justice Brennan, predicted dire consequences for the First Amendment, particularly if the doctrine were used in political speech cases. Others, like Professor Laurence Tribe, predicted secondary effects analysis would be limited to sexually explicit speech, and would not threaten the First Amendment. The modern consensus is that the doctrine has, in fact, been limited to cases about sex.

Recent cases demonstrate, however, that the impact of the secondary effects doctrine on the First Amendment has been broader ...


Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Jan 2012

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien

Scholarly Articles and Other Contributions

This Article argues that challenges made to family law structures have provoked a significant reaction from persons and religious organizations advocating a distinctive worldview based on religious and historical values. Additionally, as family law changes from being a product of a religioushistorical worldview to being a product of private-ordering, the religious liberty of worldview adherents has been challenged. The struggle is apparent in the debates during the 2012 presidential election and is evidenced in government mandates that include, among other requirements, that employersincluding religious organizations-provide insurance coverage for employees that include contraception. Although many aspects of family law have been ...


The Constitutional Right Not To Kill, Mark L. Rienzi Jan 2012

The Constitutional Right Not To Kill, Mark L. Rienzi

Scholarly Articles and Other Contributions

Federal and state governments participate in and/or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings. The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since ...


The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi Jan 2011

The Constitutional Right Not To Participate In Abortions: Roe, Casey, And The Fourteenth Amendment Rights Of Healthcare Providers, Mark L. Rienzi

Scholarly Articles and Other Contributions

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted ...


Intellect And Virtue: The Idea Of A Catholic University, John H. Garvey Jan 2011

Intellect And Virtue: The Idea Of A Catholic University, John H. Garvey

Scholarly Articles and Other Contributions

No abstract provided.


Mulieris Dignitatem: Pornography And The Dignity Of The Soul - An Exploration Of Dignity In A Protected Speech Paradigm, Mary Graw Leary Jan 2010

Mulieris Dignitatem: Pornography And The Dignity Of The Soul - An Exploration Of Dignity In A Protected Speech Paradigm, Mary Graw Leary

Scholarly Articles and Other Contributions

This article, part of a symposium celebrating the 20th anniversary of Mulieris Dignitatem, reflects on Mulieris Dignitatem’s teachings, and how they can inform the issue of pornography. Modern day pornography has increased in both its quantity and severity of content. Mulieris Dignitatem offers a pathway out of this reality with its focus on the concept of dignity. The article reviews John Paul II’s emphasis on the dignity of woman and applies it to the modern day issue of pornography. The article suggests a paradigm shift from examining pornography solely through a speech and expression lens to examining the ...


Evangelicals And Jews In Common Cause, Marshall J. Breger Jan 2009

Evangelicals And Jews In Common Cause, Marshall J. Breger

Scholarly Articles and Other Contributions

Responding to a recent symposium on Rabbi Joseph Soloveitchik's 1964 article on the propriety of Christian-Jewish dialogue, this essay begins by assessing several arguments put forth by Soloveitchik. These include the incommensurability of religious faith, the risks interreligious dialogue presents to the Jewish minority, the dangers of syncretism, and the ability to separate neatly the sacred and the profane. The article then proceeds to discuss the nature of Catholic-Jewish today, and concludes with thoughts about the future of Christian and Jewish interaction.


Introduction, Aals Symposium On Institutional Pluralism: The Role Of Religiously Affiliated Law Schools, John H. Garvey Jan 2009

Introduction, Aals Symposium On Institutional Pluralism: The Role Of Religiously Affiliated Law Schools, John H. Garvey

Scholarly Articles and Other Contributions

No abstract provided.


The Preferential Option For The Poor: An Opportunity And A Challenge For Environmental Decision Making, Lucia A. Silecchia Jan 2008

The Preferential Option For The Poor: An Opportunity And A Challenge For Environmental Decision Making, Lucia A. Silecchia

Scholarly Articles and Other Contributions

The doctrine of 'the preferential option for the poor' has deep roots in Catholic social thought. It proposes that the needs of the poorest and most vulnerable be given priority when creating and evaluating public policies, actions, and attitudes. More recently, the obligation to care for natural environment in an ethical way has been gaining more attention both in the secular world as well as among Catholic scholars who seek to explore the scope of human responsibility for the created world. This paper explores the intersection of the preferential option for the poor and environmental ethics. After a general discussion ...


Catholicism’S Critique Of Civil Society At The Turn Of The Millennium, George E. Garvey Jan 2008

Catholicism’S Critique Of Civil Society At The Turn Of The Millennium, George E. Garvey

Scholarly Articles and Other Contributions

No abstract provided.


Discerning The Environmental Perspective Of Pope Benedict Xvi, Lucia A. Silecchia Jan 2007

Discerning The Environmental Perspective Of Pope Benedict Xvi, Lucia A. Silecchia

Scholarly Articles and Other Contributions

As commentators assess the legacy left behind by Pope John Paul II, they will surely note with interest the contributions he made to the advancement of Catholic social thought with respect to the necessity for careful stewardship of creation and the link that exists between ecological concerns and genuine human development. How, his successor, Pope Benedict XVI, faces a world in which ecological concerns persist and pressures for solutions continue. This paper explores the writings of Pope Benedict XVI to ascertain the ways in which he may approach the environmental questions of the modern world. In his theological writings prior ...


Faith In The Public Square: Some Reflections On Its Role And Limitations From The Perspective Of Catholic Social Thought, Lucia A. Silecchia Jan 2006

Faith In The Public Square: Some Reflections On Its Role And Limitations From The Perspective Of Catholic Social Thought, Lucia A. Silecchia

Scholarly Articles and Other Contributions

In recent years, there has been a renewed interest in the proper role of religion in the public square. This paper offers brief reflections on the role for religious entities to play in the process of law-making and the development of public policy. It addresses this question NOT from the perspective of the government looking at religion to see what role it should play. Rather, it examines this question from the perspective of a religious group assessing what its proper role and moral obligations might be in the public square. Much of this discussion is taken, specifically, from principles of ...


Law, Religion, And Medical Science: Conjunctive Or Disjunctive?, George P. Smith Ii Jan 2006

Law, Religion, And Medical Science: Conjunctive Or Disjunctive?, George P. Smith Ii

Scholarly Articles and Other Contributions

No abstract provided.


Rabbi Joseph Soloveitchik’S ‘Confrontation’: A Reassessment, Marshall J. Breger Jan 2005

Rabbi Joseph Soloveitchik’S ‘Confrontation’: A Reassessment, Marshall J. Breger

Scholarly Articles and Other Contributions

Responding to a recent symposium on Rabbi Joseph Soloveitchik's 1964 article on the propriety of Christian-Jewish dialogue, this essay begins by assessing several arguments put forth by Soloveitchik. These include the incommensurability of religious faith, the risks interreligious dialogue presents to the Jewish minority, the dangers of syncretism, and the ability to separate neatly the sacred and the profane. The article then proceeds to discuss the nature of Catholic-Jewish today, and concludes with thoughts about the future of Christian and Jewish interaction.


Catholic Social Teaching And Its Impact On American Law: Observations On The Past And Reflections On The Future, Lucia A. Silecchia Jan 2004

Catholic Social Teaching And Its Impact On American Law: Observations On The Past And Reflections On The Future, Lucia A. Silecchia

Scholarly Articles and Other Contributions

In recent years, greater attention has been paid to the influence of Catholic social teaching as a contributor to legal debates in American society. As it has developed, Catholic social teaching clearly envisions a role for the Church to play in shaping society. The interplay between Catholic social teaching and American law is a fascinating, complex, and, at times, tense relationship. That relationship is the subject of these observations and reflections. The first part of this discussion explores how leading Church documents define the proper scope of influence for Catholic social teaching. After this brief background, the discussion will turn ...