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Articles 1 - 10 of 10
Full-Text Articles in Law
The Legal Origins Of Catholic Conscientious Objection, Jeremy K. Kessler
The Legal Origins Of Catholic Conscientious Objection, Jeremy K. Kessler
Faculty Scholarship
This Article traces the origins of Catholic conscientious objection as a theory and practice of American constitutionalism. It argues that Catholic conscientious objection emerged during the 1960s from a confluence of left-wing and right-wing Catholic efforts to participate in American democratic culture more fully. The refusal of the American government to allow legitimate Catholic conscientious objection to the Vietnam War became a cause célèbre for clerical and lay leaders and provided a blueprint for Catholic legal critiques of other forms of federal regulation in the late 1960s and early 1970s — most especially regulations concerning the provision of contraception and …
Corporate Conscience And The Contraceptive Mandate: A Dworkinian Reading, Linda C. Mcclain
Corporate Conscience And The Contraceptive Mandate: A Dworkinian Reading, Linda C. Mcclain
Faculty Scholarship
When a closely-divided U.S. Supreme Court decided Burwell v. Hobby Lobby (2014), upholding a challenge by three for-profit corporations to the contraceptive coverage provisions (“contraceptive mandate”) of the Patient Protection and Affordable Care Act of 2010 (“ACA”), sadly missing in the flurry of commentary was the late Ronald Dworkin’s assessment. This essay asks, “What would Dworkin do?,” if evaluating that case as well as Wheaton College v. Burwell, in which, over a strong dissent by Justices Sotomayor, Ginsburg, and Kagan, the Court granted Wheaton College emergency relief from complying with ACA’s accommodation procedure for religious nonprofit organizations who object to …
Complicity And Collection: Religious Freedom And Tax, Jennifer Carr
Complicity And Collection: Religious Freedom And Tax, Jennifer Carr
Scholarly Works
This Article focuses on how the Religious Freedom Peace Tax Fund Bill might be improved so that members of Congress enact it. The bill would allow war tax resisters who qualify as pacifists to direct their tax money to a separate fund not to be used for military spending. At present, the IRS is expending time and resources trying to track down tax resisters, which results in loss of revenue for the government. This Article argues that passage of an amended version of the Religious Freedom Peace Tax Fund Bill would eliminate the tension between the IRS and war tax …
The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler
The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler
Faculty Scholarship
This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to …
The Invention Of A Human Right: Conscientious Objection At The United Nations, 1947-2011, Jeremy Kessler
The Invention Of A Human Right: Conscientious Objection At The United Nations, 1947-2011, Jeremy Kessler
Faculty Scholarship
The right of conscientious objection to military service is the most startling of human rights. While human rights generally seek to protect individuals from state power, the right of conscientious objection radically alters the citizen-state relationship, subordinating a state's decisions about national security to the beliefs of the individual citizen. In a world of nation-states jealous of their sovereignty, how did the human right of conscientious objection become an international legal doctrine? By answering that question, this Article both clarifies the legal pedigree of the human right of conscientious objection and sheds new light on the relationship between international human …
Property Outlaws, Eduardo M. Peñalver, Sonia K. Katyal
Property Outlaws, Eduardo M. Peñalver, Sonia K. Katyal
Cornell Law Faculty Publications
Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and …
Equality With A Vengeance – Women Conscientious Objectors In Pursuit Of A "Voice" And Substantive Gender Equality, Noya Rimalt
Equality With A Vengeance – Women Conscientious Objectors In Pursuit Of A "Voice" And Substantive Gender Equality, Noya Rimalt
Studio for Law and Culture
This article examines the story of female draft resistors in Israel. The story serves as a case study that can provide important insights into the inherent constraints of contemporary legal discourse in promoting substantive gender equality and into the relationship between specific legal arrangements and the invisibility of women in the public sphere. This case study also sheds a more complex light on the nature of separate legal arrangements for women, and raises important questions about the appropriate feminist agenda for social and legal change.
The Political Balance Of The Religion Clauses, Abner S. Greene
The Political Balance Of The Religion Clauses, Abner S. Greene
Faculty Scholarship
When the Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not protect religious practices from otherwise valid laws that incidentally burden those practices, it followed a particular theory of democratic politics. That some laws might unintentionally burden certain religious practices is, said the Court, an "unavoidable consequence of democratic government [that] must be preferred to a system in which each conscience is a law unto itself." The Court was certainly right in one sense: To claim that conscientious objection to an otherwise valid law should exempt one from that law is to claim that …
Conscientious Objection To Public Education: The Grievance And The Remedies, Charles E. Rice
Conscientious Objection To Public Education: The Grievance And The Remedies, Charles E. Rice
Journal Articles
The Christian school movement is the logical outgrowth of the dissatisfaction of some parents, particularly some fundamentalist Baptists, with what they regard as excessive secularism in the public schools. The controversy has already produced some definitive litigation, but much remains unsettled. On the one hand, public authorities contend the public school is truly neutral toward religion. Compulsory attendance laws and other regulations by the state of private education are seen as legitimate measures, pursuant to the police power, to achieve a minimal level of intellectual and civic competence among the young. On the other hand, objecting parents and pastors regard …
All Or Nothing At All: The Defeat Of Selective Conscientious Objection, Kent Greenawalt
All Or Nothing At All: The Defeat Of Selective Conscientious Objection, Kent Greenawalt
Faculty Scholarship
The generosity of the United States Supreme Court to conscientious objectors whom Congress has declined to exempt from military service has apparently ended. In Gillette v. United States, decided with Negre v. Larsen, the Court decisively closed the door on claims that those conscientiously opposed to participation in particular wars are entitled by statute or constitutional right to an exemption from military service. Mr. Justice Marshall's majority opinion first disposes of the statutory claim. According to the opinion, the relevant language of § 6(j) of the Military Selective Service Act of 1967," conscientiously opposed to participation in war …