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The Faith Of My Fathers, Robert H. Jackson, John Q. Barrett Jan 2019

The Faith Of My Fathers, Robert H. Jackson, John Q. Barrett

Faculty Publications

(Excerpt)

In his final years, United States Supreme Court Justice Robert H. Jackson worked on a number of autobiographical writing projects. The previously unknown Jackson text that follows this Introduction is one such writing. Justice Jackson wrote this essay in longhand on thirteen yellow legal pad pages in the early 1950s. It is Jackson’s writing about religion in his life.

After Justice Jackson’s death in 1954, his secretary Elsie L. Douglas found the thirteen pages among his papers. She concluded that the pages were “undoubtedly prepared as part of his autobiography,” typed them up, and gave a file ...


Reflections On The Christchurch Massacre: Incorporating A Critique Of Islamophobia And Twail, Cyra Akila Choudhury Dec 2018

Reflections On The Christchurch Massacre: Incorporating A Critique Of Islamophobia And Twail, Cyra Akila Choudhury

Faculty Publications

On March 15, 2019 in Christchurch, New Zealand, a white supremacist entered a mosque full of worshippers and gunned down over 50 people. He was welcomed into the house of worship as Muslim immigrants and converts were about to start their Friday prayers. News of the attack spread quickly across the globe. Social media news feeds and online sources provided near-instantaneous updates. There were calls to prioritize the lives and stories of the victims and survivors. Although there were calls not to glorify or even humanize the shooter, people understandably professed interest in his writings and his motivation. Once it ...


Commerce, Religion, And The Rule Of Law, Nathan B. Oman Jan 2018

Commerce, Religion, And The Rule Of Law, Nathan B. Oman

Faculty Publications

The rule of law and religion can act as commercial substitutes. Both can create the trust required for material prosperity. The rule of law simplifies social interactions, turning people into formal legal agents and generating a map of society that the state can observe and control, thus credibly committing to the enforcement of the legal rights demanded by impersonal markets. Religion, in contrast, embraces complex social identities. Within these communities, economic actors can monitor and sanction misbehavior. Both approaches have benefits and problems. The rule of law allows for trade among strangers, fostering peaceful pluralism. However, law breeds what Montesquieu ...


Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman Apr 2017

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Faculty Publications

Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts ...


Tears In Heaven: Religiously And Culturally Sensitive Laws For Preventing The Next Pandemic, Eloisa Rodriguez-Dod, Aileen M. Marty, Elena Marty-Nelson Jan 2016

Tears In Heaven: Religiously And Culturally Sensitive Laws For Preventing The Next Pandemic, Eloisa Rodriguez-Dod, Aileen M. Marty, Elena Marty-Nelson

Faculty Publications

In February 2016, the World Health Organization (WHO) declared a “public health emergency of international concern” due to the increased clusters of microcephaly, Guillain-Barré Syndrome, and other neurological disorders in areas affected by the Zika virus. That declaration came in the wake of the West Africa Ebola crisis. Back to back declarations by WHO of the highest threat level for an international public health emergency underscores how quickly pathogens can now spread and cause devastation across borders. It also highlights the need to implement lessons learned from each pandemic crisis without delay. These crises demonstrate that laws to curtail the ...


Third-Party Harms, Congressional Statutes Accommodating Religion, And The Establishment Clause, Carl H. Esbeck May 2015

Third-Party Harms, Congressional Statutes Accommodating Religion, And The Establishment Clause, Carl H. Esbeck

Faculty Publications

Those disappointed with the U.S. Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc. (2014), are actively seeking ways to otherwise limit the Religious Freedom Restoration Act (RFRA). Justice Ruth Bader Ginsburg, dissenting in Hobby Lobby, wrote that when a statute seeks to accommodate a claimant’s religious beliefs or practices there must be no detrimental effect on third parties who do not share those beliefs. Although it is unclear whether Justice Ginsburg was relying on the Establishment Clause as imposing this categorical restraint on the authority of Congress, some commentators argue that her thinking necessarily rests ...


The Need For A Law Of Church And Market, Nathan B. Oman Apr 2015

The Need For A Law Of Church And Market, Nathan B. Oman

Faculty Publications

This Essay uses Helfand and Richman’s fine article to raise the question of the law of church and market. In Part I, I argue that the question of religion’s proper relationship to the market is more than simply another aspect of the church-state debates. Rather, it is a topic deserving explicit reflection in its own right. In Part II, I argue that Helfand and Richman demonstrate the danger of creating the law of church and market by accident. Courts and legislators do this when they resolve questions religious commerce poses by applying legal theories developed without any thought ...


Return To Political Theology, Joshua D. Hawley Mar 2015

Return To Political Theology, Joshua D. Hawley

Faculty Publications

There was a time when theology was called the "queen of the sciences." From the beginnings of the university in the High Middle Ages through the nineteenth century, theology formed the backbone of liberal instruction at institutions of higher learning. Those days are long past. What remains of theological investigation in most major American universities has been trans- posed into the study of religion and safely sequestered in "religious studies" departments. Few undergraduates today encounter theology as a discipline-and as for law students, well, the idea that theology might have some relevance for the study of law is regarded in ...


International Legal Experience And The Mormon Theology Of The State, 1945-2012, Nathan B. Oman Jan 2015

International Legal Experience And The Mormon Theology Of The State, 1945-2012, Nathan B. Oman

Faculty Publications

No abstract provided.


Magna Carta’S Freedom For The English Church, Dwight G. Duncan Jan 2014

Magna Carta’S Freedom For The English Church, Dwight G. Duncan

Faculty Publications

Even after, eight centuries, this provision of Magna Carta is one of the few that remains in effect. A statement of principle that the Church in England should be free from outside domination, it is an ancestor of our American belief in separation of Church and State and the guarantee of free exercise of religion contained in the First Amendment. In English history, people died for this principle, on various sides of the denominational divides. It was not always vindicated in practice. But, since at least the end of the thirteenth century, it has ever been on the statute books ...


Shari'ah Law As National Security Threat?, Cyra Akila Choudhury Jan 2013

Shari'ah Law As National Security Threat?, Cyra Akila Choudhury

Faculty Publications

This Article examines the recently proposed anti-shari’ah laws of Tennessee, Oklahoma and Arizona. It begins by examining the laws and their justifications and analyzes the 10th Circuit decision in Awad v. Ziriax upholding the injunction against Oklahoma’s Save Our State amendment. It then carefully analyzes the cases that have been cited as examples of shari’ah-creep and reveals that they are actually routine examples of comity and conflicts of law rules applied properly by a properly functioning judiciary. If these laws are not national security measures, what is their true purpose? The Article posits that the new laws ...


State-Sponsored Religious Displays In The U.S. And Europe: Introduction, Mark L. Movsesian Jan 2013

State-Sponsored Religious Displays In The U.S. And Europe: Introduction, Mark L. Movsesian

Faculty Publications

On June 22, 2012, the Center for Law and Religion proudly hosted, together with the Department of Law at Libera Universita Maria SS. Assunta (LUMSA), an international conference, State-Sponsored Religious Displays in the U.S. and Europe. Held at LUMSA's campus in Rome, Italy, the conference brought together leading American and European scholars, judges, and government officials to address the legality of public religious displays in different nations. Professor Silvio Ferrari of the University of Milan delivered the Conference Introduction. Panels included Cultural or Religious? Understanding Symbols in Public Places; The Lautsi Case and the Margin of Appreciation; and ...


Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck Oct 2012

Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck

Faculty Publications

While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech ...


Religious Legal Theory Symposium: Introduction, Mark L. Movsesian Jan 2011

Religious Legal Theory Symposium: Introduction, Mark L. Movsesian

Faculty Publications

On November 5, 2010, the St. John's Center for Law and Religion proudly hosted the annual Religious Legal Theory Conference. The event, now in its second year and to be shared among different universities, brought together scholars from around the world to discuss this year's theme, "Religion in Law, Law in Religion." The Center chose this theme in order to include papers on traditional church-state issues—“Religion in Law"—as well as papers addressing the role that law plays in various religious traditions—“Law in Religion." In addition, because contemporary law and religion scholarship has moved beyond strictly ...


Smith, Christian Legal Society, And Speech-Based Claims For Religious Exemptions From Neutral Laws Of General Applicability, William P. Marshall Jan 2011

Smith, Christian Legal Society, And Speech-Based Claims For Religious Exemptions From Neutral Laws Of General Applicability, William P. Marshall

Faculty Publications

No abstract provided.


Wait! That's Not What We Meant By Civil Society!: Questioning The Ngo Orthodoxy In West Africa, Thomas A. Kelley Iii Jan 2011

Wait! That's Not What We Meant By Civil Society!: Questioning The Ngo Orthodoxy In West Africa, Thomas A. Kelley Iii

Faculty Publications

No abstract provided.


Laïcité In Comparative Perspective (Conference): Foreword, Mark L. Movsesian Jan 2010

Laïcité In Comparative Perspective (Conference): Foreword, Mark L. Movsesian

Faculty Publications

On June 11, 2010, the Center for Law and Religion at St. John's University School of Law held its inaugural event, an academic conference at the University's Paris campus. "Laïcité in Comparative Perspective" brought together scholars from the United States and Europe to explore the French concept of laïcité and compare it with models of church-state relations in other countries, particularly the United States. Participants included Douglas Laycock (University of Virginia), who offered the Conference Introduction; Nathalie Caron (Université Paris-Est Créteil); Blandine Chelini-Pont (Université Paul Cézanne Aix-Marseille); Nina Crimm (St. John's University); Marc DeGirolami (St. John's ...


Fiqh And Canons: Reflections On Islamic And Christian Jurisprudence, Mark L. Movsesian Jan 2010

Fiqh And Canons: Reflections On Islamic And Christian Jurisprudence, Mark L. Movsesian

Faculty Publications

Although American scholarship has begun to address both Christian and Islamic jurisprudence in a serious way, virtually none of the literature attempts to compare the place of law in these two world religions. This Essay begins to compare Islamic and Christian conceptions of law and suggests some implications for contemporary debates about religious dispute settlement. Islam and Christianity are subtle and complex religions. Each has competing strands; each has evolved over millennia and expressed itself differently over time. Moreover, although systematic treatments of Islamic law are beginning to appear in English, much remains available only in languages, like Arabic, that ...


"The Living Oracles": Legal Interpretation And Mormon Thought, Nathan B. Oman Jan 2009

"The Living Oracles": Legal Interpretation And Mormon Thought, Nathan B. Oman

Faculty Publications

No abstract provided.


The Problem Of Religious Learning, Marc O. Degirolami Jan 2008

The Problem Of Religious Learning, Marc O. Degirolami

Faculty Publications

The problem of religious learning is that religion—including the teaching about religion—must be separated from liberal public education, but that the two cannot be entirely separated if the aims of liberal public education are to be realized. It is a problem that has gone largely unexamined by courts, constitutional scholars, and other legal theorists. Though the U.S. Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence, and scholars frequently urge policies for or against such controversial subjects as Intelligent Design or graduation prayers, insufficient attention has ...


Symposium: The Religion Clauses In The 21st Century -- Introduction, William P. Marshall, Vivian E. Hamilton, John E. Taylor Jan 2007

Symposium: The Religion Clauses In The 21st Century -- Introduction, William P. Marshall, Vivian E. Hamilton, John E. Taylor

Faculty Publications

No abstract provided.


Governance And The Religion Question: Voluntaryism, Disestablishment, And America's Church-State Proposition, Carl H. Esbeck Jan 2006

Governance And The Religion Question: Voluntaryism, Disestablishment, And America's Church-State Proposition, Carl H. Esbeck

Faculty Publications

The quandary over how to structure the relationship between religion and the civil state is an ancient one. From the perspective of political philosophy this is the religion question, and events over many centuries have proven that the answer is easy to get wrong. Religion, by its very definition, is the fixed point from which all else is surveyed. It is about ultimate matters, both micro and macro. Hence, religion addresses the irreducible core of personhood and its meaning, while at the same time religion embraces a worldview that transcends and encompasses everything else. Religion generates intense emotions that when ...


Play In The Joints Between The Religion Clauses' And Other Supreme Court Catachreses, Carl H. Esbeck Jan 2006

Play In The Joints Between The Religion Clauses' And Other Supreme Court Catachreses, Carl H. Esbeck

Faculty Publications

Consistent with its fumbling of late when dealing with cases involving religion, the U.S. Supreme Court has taken to reciting the metaphor of play in the joints between the Religion Clauses. This manner of framing the issue before the Court presumes that the Free Exercise and Establishment Clauses run in opposing directions, and indeed will often conflict. It then becomes the Court's task, as it sees it, to determine if the law in question falls safely in the narrows where there is space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment ...


Recoiling From Religion, Marc O. Degirolami Jan 2006

Recoiling From Religion, Marc O. Degirolami

Faculty Publications

This is an essay reviewing Professor Marci A. Hamilton's book, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (Cambridge Univ. Press 2005).

Professor Marci Hamilton has written a forceful and obviously heartfelt book that should give pause to committed champions of religious free exercise. She argues convincingly that religious freedom is too often invoked to shield opprobrious and socially harmful activity, and she describes numerous examples of such abuses that make any civilized person's blood run cold. Her avowed aims are to debunk the “hazardous myth” that religion is “inherently and always good for society” and ...


Triptych: Sectarian Disputes, International Law, And Transnational Tribunals In Drinan's "Can God And Caesar Coexist?", Christopher J. Borgen Jan 2006

Triptych: Sectarian Disputes, International Law, And Transnational Tribunals In Drinan's "Can God And Caesar Coexist?", Christopher J. Borgen

Faculty Publications

Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today's systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom.

To what ...


Why The Catholic Majority On The Supreme Court May Be Unconstitutional, Symposium On Catholicism And The Court, Michael J. Gerhardt Jan 2006

Why The Catholic Majority On The Supreme Court May Be Unconstitutional, Symposium On Catholicism And The Court, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Murder, Meth, Mammon & Moral Values: The Political Landscape Of American Sentencing Reform (In Symposium On White Collar Crime), Frank O. Bowman Iii Apr 2005

Murder, Meth, Mammon & Moral Values: The Political Landscape Of American Sentencing Reform (In Symposium On White Collar Crime), Frank O. Bowman Iii

Faculty Publications

This Article examines the ongoing American experiment in mass incarceration and considers the prospects for meaningful sentencing reform.


A Terrible Purity: International Law, Morality, Religion, Exclusion, Tawia Baidoe Ansah Jan 2005

A Terrible Purity: International Law, Morality, Religion, Exclusion, Tawia Baidoe Ansah

Faculty Publications

This article's point of departure is the US's war against Iraq, which was begun in 2003 under various rationales - political, legal, and moral. As the legal and political justifications fell away or were cast into question, the moral became the primary reason for going to war. The justifications were, however, construed in religious language. For many, this "return" of religion within US foreign policy seemed particular to the Bush Administration. Others have argued that the turn to religion in time of war is nothing new. Nevertheless, the war and its justifications made me wonder about the nature of ...


Dissent And Disestablishment: The Church/State Settlement Of The New American Republic, Carl H. Esbeck Jan 2004

Dissent And Disestablishment: The Church/State Settlement Of The New American Republic, Carl H. Esbeck

Faculty Publications

This paper has two aims. They are more in the nature of history than law. The first aim is to show that since the fourth century Western civilization has presupposed that there are not one but two sovereigns. Each has a jurisdiction of legitimate operation, and while there are areas of shared cognizance, there are other subject matter areas in which each is noncompetent to perform the tasks of the other. The second aim of this paper is to uncover historical figures that advanced a proposition concerning religious freedom that became the American church-state settlement.


International Law And Religion In Latin America: The Beagle Channel Dispute, M C. Mirow Jan 2004

International Law And Religion In Latin America: The Beagle Channel Dispute, M C. Mirow

Faculty Publications

In 1978, an Argentine diplomat proposed a method of defusing a territorial dispute that very nearly sparked off a war between Argentina and Chile, It,was an offer calculated to be rejected by Chile, and yet Chile’s immediate response was “Agreed” - a response so unthinkable to Argentina that within hours its military Junta revoked the power of the Foreign Minister and the President to sign the agreement it had just proposed. In December 1978, the countries were quickly moving towards a war that, if waged, would most likely have engulfed much of Latin America. The Vatican, however, intervened and ...