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When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand
When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand
Michael A Helfand
In this chapter, I explore how judges—and, more generally, U.S. courts—deal with legal disputes when they must consider not only laws and facts, but also religion, or maybe even more precisely, theology. Indeed, in a wide range of circumstances, judges are confronted with cases where the outcome in some way or another requires them to issue a decision that is predicated, to varying to degrees, on a theological question upon which there is some debate. While in American law the ostensibly simple answer to this question is simply that the Constitution prohibits courts from adjudicating religious questions, the reality is …
The Future Of Religious Arbitration In The United States: Looking Through A Pluralist Lens, Michael A. Helfand
The Future Of Religious Arbitration In The United States: Looking Through A Pluralist Lens, Michael A. Helfand
Michael A Helfand
In recent years, religious arbitration has received increasing attention both in the American press and academy. For some, this attention is driven by concern that state enforcement of decisions issued by religious tribunals has the power to undermine the objectives of the U.S. legal system. For others, it is driven by a recognition that religious arbitration enables communities to enhance their process of dispute resolution by ensuring that it comports with shared religious principles and values. And, as is often the case, both perspectives contain important elements of truth. As a paradigmatic legal plurality institution, religious arbitration has the capacity …
Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand
Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand
Michael A Helfand
One of the recent fault lines over religious liberty is the scope of protections afforded religiously motivated institutions and corporations. Courts and scholars all seem to agree that such religious institutions deserve some degree of protection. But there remains significant debate over the principles that should guide judicial decisions addressing the circumstances in which religiously motivated institutions should, and in which circumstances they should not, receive the law’s protection.
In this Article, I expound, and defend, my proposed “implied consent” framework for addressing religious institutional claims. Such a framework grounds the authority of religious institutions not in a degree of …