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Church autonomy

Selected Works

Constitutional Law

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Full-Text Articles in Law

Beit Din's Gap-Filling Function: Using Beit Din To Protect Your Client, Michael A. Helfand Dec 2013

Beit Din's Gap-Filling Function: Using Beit Din To Protect Your Client, Michael A. Helfand

Michael A Helfand

This article considers how rabbinical courts play an important gap-filling role by providing parties with a forum to adjudicate a subset of religious disputes that could not be resolved in court. Under current constitutional doctrine, civil courts cannot adjudicate disputes that turn on religious doctrine and practice. By contrast, rabbinical courts can resolve such disputes--and the decisions of rabbinical courts can then be enforced by civil courts even as those same civil courts could not resolve the dispute in the first instance. In this way, rabbinical courts--like other religious arbitration tribunals--fill a void created by constitutional law, ensuring that parties …


Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett Nov 2013

Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett

Richard W Garnett

What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if …


The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett Nov 2013

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Richard W Garnett

This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law …


Religion's Footnote Four: Church Autonomy As Arbitration, Michael A. Helfand Dec 2012

Religion's Footnote Four: Church Autonomy As Arbitration, Michael A. Helfand

Michael A Helfand

While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four – that the ministerial exception is an affirmative defense and not a jurisdictional bar – undermines decades of conventional thinking about the relationship between church and state. For some time, a wide range of scholars had conceptualized the relationship between religious institutions and civil courts as “jurisdictional” – that is, scholars converged on the view that the religion clauses deprived courts of subject-matter jurisdiction over religious claims. In turn, courts could not adjudicate religious disputes …