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Articles 1 - 30 of 109
Full-Text Articles in Law
Shots Fired, Shots Refused: Scientific, Ethical & Legal Challenges Surrounding The U.S. Military's Covid-19 Vaccine Mandate, Shawn Mckelvy, L. William Uhl, Armand Balboni
Shots Fired, Shots Refused: Scientific, Ethical & Legal Challenges Surrounding The U.S. Military's Covid-19 Vaccine Mandate, Shawn Mckelvy, L. William Uhl, Armand Balboni
St. Mary's Law Journal
The COVID-19 pandemic provided uncertain and challenging circumstances under which to lead a nation and the military that protects it. Those in charge and in command faced unique challenges—scientific, ethical, and legal—at our various levels of government to both keep people safe while keeping government and society functioning. While there were many successes to celebrate, there are also many criticisms for how this “whole-of-government approach” may have degraded some of our most cherished liberties along the way. The authors focus on the U.S. military’s vaccine mandate and propose military leaders may have failed to fully consider the evolving science, weigh …
Separation Of Church And Law: The Ministerial Exception In Demkovich V. St. Andrew The Apostle Parish, Jonathan Murray
Separation Of Church And Law: The Ministerial Exception In Demkovich V. St. Andrew The Apostle Parish, Jonathan Murray
University of Colorado Law Review
Religious freedom is increasingly invoked to defeat liability for behavior that has long been regulated under accepted, neutral law, an argument to which many courts and judges appear receptive. One such area of law seeing this activity is the ministerial exception-a judicial principle recognized under the First Amendment. The ministerial exception guarantees religious organizations' discretion in how they select their "ministers,"or religious employees dedicated to the organization's religious mission. However, current law lacks clarity regarding the application of the exception to an organization's treatment of its ministers. Recently, the Seventh Circuit, sitting en banc, chose to categorically expand the application …
Discrimination, Trump V. Hawaii, And Masterpiece Cakeshop, Christopher C. Lund
Discrimination, Trump V. Hawaii, And Masterpiece Cakeshop, Christopher C. Lund
Georgia Law Review
This short symposium piece is a comment on two of the Supreme Court’s recent religion cases. The first is Trump v. Hawaii, the travel ban case, where the Court rejected the claim of unconstitutional religious discrimination against Muslims.1 The second is Masterpiece Cakeshop, the case about the baker who refused to make a cake for a gay wedding, where the Court accepted the claim of unconstitutional religious discrimination against a conservative Christian.2 One case finds discrimination, while the other rejects it. Yet more fundamentally, the pairing suggests differences in how we perceive or react to evidence of discrimination. Both on …
Equal, But Only Conceptually: Explaining The Phenomenon Of Religious Losses In Contemporary Canadian Constitutional Cases Involving Conflicting Rights, Mike Madden
Dalhousie Law Journal
If there is no hierarchy of rights in Canada, then why does freedom of religion so often seem to lose in cases of conflicts with other rights? This article discusses five recent Canadian cases (involving same-sex marriages, controversial medical practices, the wearing of a niqab, and a Christian university’s sexual conduct policy) in order to expose how the courts regularly characterize freedom of religion as being conceptually equal to other rights, before ruling against freedom of religion on the facts of the particular cases. This phenomenon within Canadian rights jurisprudence is then justified within the article by reference to a …
No Aid, No Agency, Steven K. Green
No Aid, No Agency, Steven K. Green
William & Mary Bill of Rights Journal
Over the past three decades, members of the Supreme Court have demonstrated increasing hostility to the Establishment Clause’s rule against funding religion, first enunciated in 1947. Over the years, the Court has not only narrowed the rule to allow for government aid to flow to religious schools and faith-based charities, it has more recently declared that to enforce that rule may amount to discrimination against religion. This Article argues that a key reason for the decline in the no-aid principle rests on the weakness of the rationale underlying that rule: that funding of religion coerces the conscience of taxpayers. The …
Faith And/In Medicine: Religious And Conscientious Objections To Maid, Daphne Gilbert
Faith And/In Medicine: Religious And Conscientious Objections To Maid, Daphne Gilbert
Dalhousie Law Journal
Across Canada, health care institutions that operate under the umbrella of religious traditions refuse to offer medical assistance in dying (MAiD) on the grounds that it violates their Charter-protected rights to freedom of religion and conscience. This article analyses the Supreme Court jurisprudence on section 2(a) and concludes that it should not extend to the protection of institutional rights. While the Court has not definitively pronounced a view on this matter, its jurisprudence suggests that any institutional right to freedom of religion would not extend to decisions on publicly-funded and legal health care. MAiD is a constitutionally-protected option for individuals …
The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill
The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill
William & Mary Bill of Rights Journal
No abstract provided.
The Conscience Of The Baker: Religion And Compelled Speech, Ashutosh Bhagwat
The Conscience Of The Baker: Religion And Compelled Speech, Ashutosh Bhagwat
William & Mary Bill of Rights Journal
No abstract provided.
Panel 3: Free Speech And Freedom Of Religion
Panel 3: Free Speech And Freedom Of Religion
Georgia State University Law Review
Moderator: Eric Segall
Panelists: Mike Dorf and Eugene Volokh
Religious Freedom Through Market Freedom: The Sherman Act And The Marketplace For Religion, Barak D. Richman
Religious Freedom Through Market Freedom: The Sherman Act And The Marketplace For Religion, Barak D. Richman
William & Mary Law Review
In prior work, I examined certain restraints by private religious organizations and concluded that the First Amendment did not immunize these organizations from antitrust liability. In short, the First Amendment did not preempt enforcing the Sherman Act against certain religious monopolies or cartels.
This Article offers a stronger argument: First Amendment values demand antitrust enforcement. Because American religious freedoms, enshrined in the Constitution and reflected in American history, are quintessentially exercised when decentralized communities create their own religious expression, the First Amendment’s religion clauses are best exemplified by a proverbial marketplace for religions. Any effort to stifle a market organization …
The Religious Freedom Restoration Act At 25: A Quantitative Analysis Of The Interpretive Case Law, Lucien J. Dhooge
The Religious Freedom Restoration Act At 25: A Quantitative Analysis Of The Interpretive Case Law, Lucien J. Dhooge
William & Mary Bill of Rights Journal
No abstract provided.
(Same) Sex, Lies, And Democracy: Tradition, Religion, And Substantive Due Process (With An Emphasis On Obergefell V. Hodges), Stephen M. Feldman
(Same) Sex, Lies, And Democracy: Tradition, Religion, And Substantive Due Process (With An Emphasis On Obergefell V. Hodges), Stephen M. Feldman
William & Mary Bill of Rights Journal
Substantive due process issues implicitly concern voice. Whose voice will be heard? Although such issues often remain submerged, the Justices occasionally translate them into disputes over democratic participation and power. The Supreme Court’s most important substantive due process decision in years, Obergefell v. Hodges, entailed such a battle over democracy. The multiple dissenting opinions insisted that the decision demeaned the opponents of same-sex marriage, many of whom were inspired by traditional values and religious convictions. The majority explicitly disagreed, reasoning that the case resolved the rights of same-sex couples to marry and did not diminish the opponents’ voices. The dissenters …
Five Justices Have Transformed The First Amendment’S Freedom Of Religion To Freedom From Religion, Gerald Walpin
Five Justices Have Transformed The First Amendment’S Freedom Of Religion To Freedom From Religion, Gerald Walpin
Touro Law Review
No abstract provided.
A Primer On Hobby Lobby: For-Profit Corporate Entities’ Challenge To The Hhs Mandate, Free Exercise Rights, Rfra’S Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby
A Primer On Hobby Lobby: For-Profit Corporate Entities’ Challenge To The Hhs Mandate, Free Exercise Rights, Rfra’S Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby
Pepperdine Law Review
Earlier this term, the United States Supreme Court heard oral argument in the consolidated case of Hobby Lobby Stores, Inc. v. Sebelius, the first of a litany of cases in which for-profit business entities are invoking the Religious Freedom Restoration Act ("RFRA") in support of their claim that the Affordable Care Act’s HHS Mandate violates their freedom of religion. In particular, these plaintiffs argue that the Mandate’s requirement that employer-provided health insurance covers the costs of contraceptives, the "morning after" pill, and other fertility-related drugs conflicts with their deeply-held religious belief that life begins at conception and is, therefore, unconstitutional. …
Public Accommodation Statutes And Sexual Orientation: Should There Be A Religious Exemption For Secular Businesses?, Lucien J. Dhooge
Public Accommodation Statutes And Sexual Orientation: Should There Be A Religious Exemption For Secular Businesses?, Lucien J. Dhooge
William & Mary Journal of Race, Gender, and Social Justice
This Article examines the issue of whether there should be a religious exemption for secular businesses from public accommodation statutes that protect prospective patrons from discrimination on the basis of sexual orientation. The Article examines this issue in the context of protecting free exercise of religion versus offering services to all members of the public equally and without distinction. The Article concludes that the perceived threat to religious liberty posed by such statutes is exaggerated, that the consequences of granting exemptions would be harmful, and that state-sanctioned discrimination is contrary to the fundamental principles of justice and equality underlying the …
Dias V. Archdiocese Of Cincinnati: Deciphering The Ministerial Exception To Title Vii Post-Hosanna-Tabor, Caroline O. Dehaan
Dias V. Archdiocese Of Cincinnati: Deciphering The Ministerial Exception To Title Vii Post-Hosanna-Tabor, Caroline O. Dehaan
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Free Exercise After The Arab Spring: Protecting Egypt’S Religious Minorities Under The Country’S New Constitution, James Michael Nossett
Free Exercise After The Arab Spring: Protecting Egypt’S Religious Minorities Under The Country’S New Constitution, James Michael Nossett
Indiana Law Journal
No abstract provided.
Freedom Of Religion In Public Schools In Germany And In The United States, Inke Muehlhoff
Freedom Of Religion In Public Schools In Germany And In The United States, Inke Muehlhoff
Georgia Journal of International & Comparative Law
No abstract provided.
A Corporation Has No Soul — The Business Entity Law Response To Challenges To The Ppaca Contraceptive Mandate, Thomas E. Rutledge
A Corporation Has No Soul — The Business Entity Law Response To Challenges To The Ppaca Contraceptive Mandate, Thomas E. Rutledge
William & Mary Business Law Review
The most contentious matter in the implementation of the Patient Protection and Affordable Care Act is not one of health care, but rather one of the law of business organizations. Numerous for-profit business organizations have challenged the portion of the PPACA and its related regulations requiring that group health insurance plans provide, on a no-cost sharing basis, coverage for a variety of procedures and prescription medicines involving contraception and what some describe as “abortificants.” In these suits, the various business ventures and their owners assert that they should be exempt from the requirement of the mandate on the basis that, …
Piercing The Religious Veil Of The So-Called Cults , Joey Peter Moore
Piercing The Religious Veil Of The So-Called Cults , Joey Peter Moore
Pepperdine Law Review
No abstract provided.
Government Entanglement With Religion: What Degree Of Proof Is Required? , Lee Boothby
Government Entanglement With Religion: What Degree Of Proof Is Required? , Lee Boothby
Pepperdine Law Review
No abstract provided.
The Only Thing We Have To Fear Is Fear Itself: Islamophobia And The Recently Proposed Unconstitutional And Unnecessary Anti-Religion Laws, Lee Tankle
William & Mary Bill of Rights Journal
No abstract provided.
The Burka Ban: Divergent Approaches To Freedom Of Religion In France And In The U.S.A., Ioanna Tourkochoriti
The Burka Ban: Divergent Approaches To Freedom Of Religion In France And In The U.S.A., Ioanna Tourkochoriti
William & Mary Bill of Rights Journal
Six years after prohibiting the wearing of headscarves by students in public schools, the French state passed a law prohibiting the wearing of burkas in public places. Compared to France, in the United States there is more tolerance for wearing signs of religious affiliation. The difference in legal responses can be understood in reference to a different background understanding of the fundamental presuppositions of republicanism in the two legal and political orders, which also define their conception of secularism. The law enacted in France can be understood in a general frame of a paternalistic state, which is seen as permitted …
Kiss The Book...You're President...: "So Help Me God" And Kissing The Book In The Presidential Oath Of Office, Frederick B. Jonassen
Kiss The Book...You're President...: "So Help Me God" And Kissing The Book In The Presidential Oath Of Office, Frederick B. Jonassen
William & Mary Bill of Rights Journal
No abstract provided.
Constitutional Divide: The Transformative Significance Of The School Prayer Decisions, Steven D. Smith
Constitutional Divide: The Transformative Significance Of The School Prayer Decisions, Steven D. Smith
Pepperdine Law Review
This article challenges the standard view in which Everson v. Board of Education was the foundational and most important establishment clause decision and the school prayer decisions of the early 1960s (Engel v. Vitale and Abington School District v. Schempp) were virtually automatic corollaries. In fact, the article argues, it was the school prayer decisions that were foundational, subverting Everson’s “no aid separationism,” and animating not only later establishment clause jurisprudence but much else in constitutional and public discourse besides. Indeed, it is plausible to see the influence of the school prayer decisions and their articulation of secular neutrality as …
First Amendment Freedom Of Speech And Religion - October 2009 Term, Burt Neuborne, Michael C. Dorf
First Amendment Freedom Of Speech And Religion - October 2009 Term, Burt Neuborne, Michael C. Dorf
Touro Law Review
No abstract provided.
Rationalizing Religious Exemptions: A Legislative Process Theory Of Statutory Exemptions For Religion, Zoe Robinson
Rationalizing Religious Exemptions: A Legislative Process Theory Of Statutory Exemptions For Religion, Zoe Robinson
William & Mary Bill of Rights Journal
This Article proposes a new theory of religious liberty in the United States: it hypothesizes that a person’s religious freedom is dependent on their political power. Following the Supreme Court’s 1990 decision of Employment Division v. Smith, the legislature has sole control over the enactment of accommodations and exemptions from laws of general application for religious adherents. This Article argues that post-Smith accounts of religious liberty and pluralism fail to systematically analyze the relationship between religious liberty and legislative exemptions. To this end, the Article proposes a unique public choice model that hypothesizes that legislative accommodations and exemptions may result …
The Religious Liberty Of Judges, Daniel R. Suhr
The Religious Liberty Of Judges, Daniel R. Suhr
William & Mary Bill of Rights Journal
This Article begins by reviewing the government employee line of cases, starting with United Public Workers v. Mitchell in 1947.29 The first section concludes that the modified Pickering balancing test set forth in United States v. National Treasury Employees Union (NTEU) is the appropriate level of scrutiny for judicial conduct rules. The body of this Article reviews ways in which the four canons of the ABA Model Code of Judicial Ethics and official interpretations of and rulings regarding them limit the religious activities of judges. I conclude that numerous applications of the Model Code are unconstitutional infringements on judges’ First …
The Diminishing Free Speech Rights Of Military Chaplains In The Aftermath Of Repealing “Don’T Ask Don’T Tell”, Elyse Stiner
The Diminishing Free Speech Rights Of Military Chaplains In The Aftermath Of Repealing “Don’T Ask Don’T Tell”, Elyse Stiner
University of Miami National Security & Armed Conflict Law Review
No abstract provided.
The Fading Free Exercise Clause, Rene Reyes
The Fading Free Exercise Clause, Rene Reyes
William & Mary Bill of Rights Journal
This Article uses the Supreme Court’s recent opinion in Christian Legal Society
v. Martinez as a point of departure for analyzing the current state of free exercise doctrine. I argue that one of the most notable features of the Christian Legal Society (CLS) case is its almost total lack of engagement with the Free Exercise Clause. For the core of CLS’s complaint was unambiguously about the declaration and exercise of religious beliefs: the group claimed that it was being excluded from campus life because it required its members to live according to shared religious principles and to subscribe to a …