Law Commons^™

Privilege Through Prayer: Examining Bible-Based Prison Rehabilitation Programs Under The Establishment Clause, Nathaniel J. Odle

ExpressO

In early June of 2006, an Iowa federal judge found a publicly-funded prison ministry to be in violation of the Establishment Clause and ordered it stopped. The program in question, the InnerChange Freedom Initiative, conceived and maintained by Prison Fellowship Ministries, utilized an overtly Christian model to rehabilitate inmates through spiritual and moral regeneration. In the eyes of the court, the failure of the state of Iowa to provide a reasonable secular alternative had the primary effect of advancing religion and fostered excessive governmental entanglement under a traditional Lemon analysis. Equally important in the court’s decision was the lack of …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Uncivil Religion: "Judeo-Christianity" And The Ten Commandments, Frederick Mark Gedicks, Roger Hendrix

ExpressO

In the recent Decalogue Cases, Justice Scalia argued that when it comes to “public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits th[e] disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.” Justice Scalia's argument represents the latest attempt to insulate American civil religion from Establishment Clause attack. A “civil religion” is a set of nondenominational values, symbols, rituals, and assumptions which create both reverence of national history and formation of a communal national bond. The most recent incarnation of American civil …

The Future Of Apologies, Aaron Lazare

New England Journal of Public Policy

Aaron Lazare spoke on the topic of apologies at the inauguration of Chancellor Michael Collins at the University of Massachusetts Boston. This text is taken from Lazare’s 2004 book On Apology published by Oxford University Press and reprinted here with permission.

The Freedom To Manifest Religious Belief: An Analysis Of The Necessity Clauses Of The Iccpr And The Echr, M. Todd Parker

Duke Journal of Comparative & International Law

No abstract provided.

The City Of God And The Cities Of Men: A Response To Jason Carter, Randy Beck

Scholarly Works

Law school seminars sometimes educate the professor as much as the students. That proved true for me in the spring of 2004, when seventeen law students and two colleagues from other departments joined me for a seminar focused on ancient and contemporary perspectives on law found within various Christian theological traditions. One seminar student who repeatedly spurred my own thinking was Jason Carter. Particularly thought provoking was the paper Jason presented in the final weeks of the seminar.

The returns from the 2004 election suggested that Jason had been unusually prescient in his analysis of U.S. religious and political trends. …

Legal Consciousness And Contractual Obligations, Kojo Yelpaala

ExpressO

The Article on “Legal Consciousness and Contractual Obligations” will explore and offer an explanation of the origins of the moral foundations for contractual obligations beyond conventional analysis. Building on themes and threads across many disciplines and theories, it seeks to identify and locate certain unities and common elements that explain human consciousness in exchange relations across cultures. The term contract is used in its non-technical and most inclusive sense to cover agreements, promises, undertakings and other forms of consensus whether or not supported by consideration. Viewed within this broad conceptual framework, where do human beings get the idea that they …

Undoing The Native American Graves And Repartriation Act, Lori N. Wight

ExpressO

No abstract provided.

Legal Pluralism & Women's Rights: A Study In Post-Colonial Tanzania, Edward R. Fluet, Mark J. Calaguas, Cristina M. Drost

ExpressO

Recognizing a dearth of legal research on Zanzibar, the authors explore the complex legal and cultural landscape of this archipelago and its relationship to mainland Tanzania. The article discusses the problems that arise when multicultural societies adopt a pluralist system of justice in order to preserve the traditions of its diverse communities. Although the article focuses on Tanzania, the problems that arise from multicultural accommodations affect not only young, postcolonial nations in Africa and Asia, but also individuals in cosmopolitan, economically-developed countries such as Israel and the United States. As countries wrestle with ever diversifying ethnic and religious populations, such …

Why Guru Nanak Is Another Nail In The Coffin Of West Coast Hotel V. Parrish, John H. Ryskamp

ExpressO

In Guru Nanak v. Sutter, the Ninth Circuit upheld RLUIPA by accepting its conflation of "individualized assessments" and "substantial burden." Although RLUIPA involved a misreading of Oregon v. Smith, it was a misreading the Ninth Circuit adopted. The question is, why did Sutter counsel allow the misreading of Smith, especially since Smith lost? It is because, in general, the American bar has failed to see that there has been a substantial corrosion of the scrutiny regime established by West Coast Hotel v. Parrish. They are in denial: they can't believe that the scrutiny regime could ever fall. And yet, the …

Varied Carols: Legislative Prayer In A Pluralist Polity, Robert J. Delahunty

ExpressO

The article grows out of my research in writing an amicus brief for a group of distinguished theologians and religious scholars in Hinrichs v. Bosma, a case currently pending before the Seventh Circuit. That litigation involves a challenge to the practice of the Indiana House of Representatives of inviting chaplains of various faiths to lead the House in prayer before the start of each day’s official business. The trial court interpreted the Supreme Court’s 1983 decision, Marsh v. Chambers, to prohibit “sectarian” legislative prayer, and accordingly enjoined the Indiana House’s chaplains from invoking the name of Jesus, or otherwise praying …

Liberalism And Religion, Steven H. Shiffrin

ExpressO

No abstract provided.

For A New Order In The Court, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendents, S. Alan Ray

ExpressO

The Cherokee Nation today faces the challenge of determining its citizenship criteria in the context of race. The article focuses on the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted into the Cherokee Nation after the Civil War pursuant to a treaty with the United States, and given unqualified rights of citizenship. The incorporation of the Freedmen into the tribe was resisted from the start, and now, faced with a decision of the Cherokee Nation’s highest court affirming the descendents’ citizenship rights, the Nation prepares to vote on a constitutional amendment which would impose an Indian …

Why Don’T More Public Schools Teach Sex Education? A Constitutional Explanation And Critique, Jesse R. Merriam

ExpressO

This Article questions why so many public schools do not teach any form of sex education. The answer proposed in this Article is that the U.S. Constitution is a part of the problem. This claim is based on the following two premises: (1) the U.S. Constitution certainly does not require public schools to teach sex education; and (2) the U.S. Constitution arguably requires public schools that teach sex education to exempt those students whose religious beliefs are substantially burdened by sex education.

To illustrate how these two premises might weigh in a school district’s decision not to teach sex education, …

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court: Part I-A English Stories, Marc L. Roark

ExpressO

This is part I-A of a Book I am working towards on the narratives and fictions of sovereign immunity. The goal in this part is to look before the American republic and towards the background in which American Sovereignty came to be shaped by -- the feudal notion of the sovereign; the Lockean response, and the Blackstonean doctrine. The first part looks at the legal fictions surrounding the kingship, their sources and their effects. The Second part looks to the specific ways of treating the sovereign in law, namely viewing King as Property owner or patriarch, Trustee, and Constitution.

Our Sovereign Body: Narrating The Fiction Of Sovereign Immunity In The Supreme Court, Marc L. Roark

ExpressO

This is the introduction to a book I am preparing on the Normative and Narrative aspects of the U.S. Sovereign Immunity Doctrine. The introduction sets up the problem of a doctrine that is not exactly coherent with the national narrative.

Thomas Aquinas And The Metaphysics Of Law, William S. Brewbaker

ExpressO

Despite modernity’s longstanding aversion to metaphysics, legal scholars are increasingly questioning whether law can be understood in isolation from wider questions about the nature of reality. This paper examines perhaps the most famous of metaphysical legal texts– Thomas Aquinas’ still-widely-read Treatise on Law-- with a view toward tracing the influence of Thomas’ metaphysical presuppositions.

This article shows that Thomas’ account of human law cannot be fully understood apart from his metaphysics. Attention to Thomas’ hierarchical view of reality exposes tensions between Thomas’ “top-down” account of law and his sophisticated “bottom-up” observations. For example, Thomas grounds human law’s authority in its …

Social Reproduction And Religious Reproduction: A Democratic-Communitarian Analysis Of The Yoder Problem, Josh Chafetz

ExpressO

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education -- that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation -- and the parents' interest in religious reproduction -- that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories …

Coercing Adults: The Fourth Circuit And The Acceptability Of Religious Expression In Government Settings, Elizabeth B. Halligan

South Carolina Law Review

No abstract provided.

Why Religion In Politics Does Not Violate La Conception Américaine De La Laïcité, Michael J. Perry

Indiana Journal of Global Legal Studies

La conception Am6ricaine de la Laĭcité consists principally of a constitutional norm-the nonestablishment norm-and of the laW that the U.S. Supreme Court has developed in the course of enforcing the norm. The nonestablishment norm forbids government-both the national government and state government-to "establish" religion. American laYcit6 also consists of what we may call "the morality of liberal democracy. " My aim in this essay is to explain why religion in politics does not violate American laYcit6; more specifically, my aim is to explain why political reliance on religiously grounded morality violates neither the nonestablishment norm nor the morality of liberal …

Thou Shalt Love Thy Neighbor: Rluipa And The Mediation Of Religious Land Use Disputes, Jeffrey H. Goldfien

Journal of Dispute Resolution

The question addressed in this article is whether existing systems for processing religious land use claims are well-suited to the task. The conclusion is that they are not, and that local officials and others involved in religious land use disputes ought to consider employing mediation at an early stage. The main virtue of mediation in this context is the opportunity it provides for disputants to meet face-to-face in an effort to understand the views of others, even if they do not agree with them. Facilitated dialogues among persons with differing perspectives is precisely what is missing from the traditional systems …

Religious Group Autonomy: Further Reflections About What Is At Stake, Kathleen A. Brady

Working Paper Series

This article addresses the protections afforded by the First Amendment when government regulation interferes with the internal activities or affairs of religious groups. In previous pieces, I have argued that the First Amendment should be construed to provide religious groups a broad right of autonomy over all aspects of internal group operations, those that are clearly religious in nature as well as activities that seem essentially secular. In my view, such autonomy is necessary to preserve the ability of religious groups to generate, live out and communicate their own visions for social life, including ideas that can push the norms …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The California Missions Preservation Act: Safeguarding Our History Or Subsidizing Religion?, Stacey L. Mahaney

American University Law Review

No abstract provided.

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for …

Traditional Values, Or A New Tradition Of Prejudice? The Boy Scouts Of America Vs. The Unitarian Universalist Association Of Congregations, Eric Alan Isaacson

ExpressO

President William Howard Taft, a Unitarian leader whose liberal faith had been viciously attacked by religious conservatives in the 1908 presidential campaign, used the White House as a platform in 1911 to launch a new nonsectarian organization for youth: The Boy Scouts of America (“BSA”). Lately, however, the BSA itself has come under the control of religious conservatives – who in 1992 banned Taft’s denomination from the BSA’s Religious Relationships Committee, and in 1998 threw Taft’s denomination out of its Religious Emblems Program. The denomination’s offense: A tradition of teaching its children that institutionalized discrimination is wrong. Unitarian Universalist religious …

Is Humanity Enough? The Secular Theology Of Human Rights, Peter Fitzpatrick

Human Rights & Human Welfare

© Peter Fitzpatrick. All rights reserved.

This paper may be freely circulated in electronic or hard copy provided it is not modified in any way, the rights of the author not infringed, and the paper is not quoted or cited without express permission of the author. The editors cannot guarantee a stable URL for any paper posted here, nor will they be responsible for notifying others if the URL is changed or the paper is taken off the site. Electronic copies of this paper may not be posted on any other website without express permission of the author.

The Consciousness Of Religion And The Consciousness Of Law, With Some Implications For Dialogue, Howard Lesnick

All Faculty Scholarship

No abstract provided.

Evolution Toward Neutrality: Evolution Disclaimers, Establishment Jurisprudence Confusions, And A Proposal Of Untainted Fruits Of A Poisonous Tree, Asma T. Uddin

ExpressO

This Article deals with the controversy surrounding the teaching of evolutionary theory in American public schools, with a specific focus on disclaimers read by teachers before they teach evolution. With the rise of religious fundamentalism and the correspondent change in the American socio-legal climate, questions of religion and interpretation of the Religion Clauses of the U.S. Constitution have become increasingly pertinent. In particular, the precise relationship between the Free Exercise and Establishment Clauses is of special importance with religious groups now more vocal in their articulation of their free exercise rights.

The current form of disclaimer either mentions specific religious …