Law Commons^™

When Life Begins: A Case Study Of The Unitarian Universalism Faith And Its Potential To Combat Anti-Abortion Legislation, Jennifer O'Rourke

University of Cincinnati Law Review

No abstract provided.

Revisiting Employment Division V. Smith, Blaine L. Hutchison

University of Cincinnati Law Review

The Supreme Court wrongly decided Employment Division v. Smith. Without briefing or argument over the Free Exercise Clause’s meaning, Smith eliminated the constitutional right to exercise religion and replaced it with an equal protection rule. The decision threatens religious freedom and encourages conflict. The Supreme Court should revisit Smith. This article shows that the majority’s arguments in Smith fail and contradict the Free Exercise Clause’s text, purpose, and original meaning.

The Smith majority gave no sound legal or policy reason for its decision. Indeed, the decision conflicted with settled precedents that no party questioned. Nor did it determine …

Dobbs Is Not A Religion Case, Bruce Ledewitz

Law Faculty Publications

I was unhappy, but not surprised, to see Canopy Forum including Dobbs v. Jackson Women’s Health Organization, the case that overruled Roe v. Wade, in a call for submissions under the rubric, “Law and Religion in Pressing Supreme Court Cases.” I was not surprised because, for years, many critics have labeled pro-life opposition to Roe a purely religious viewpoint. But there is nothing inherently religious about qualms concerning abortion, nor is there anything specifically religious in the Dobbs majority opinion.

Whose Secularism? Which Laïcité? Negotiating Transnational And National Constitutionalism In Kosovo, Thomas J. Hellenbrand

Notre Dame Law Review

This Note will proceed as follows: Part I will set the stage and briefly outline the history of Kosovo and its current political status. Part II will then introduce the Kosovo Constitution and the process by which international agreements (such as the European Convention of Human Rights) were embedded in the text and made binding legal authority. It will show that, although the international agreements are binding, the Kosovo Constitution does not make international case law obligatory. Part III will then address different foundational documents drafted in anticipation of Kosovo’s statehood and how judicial and administrative institutions should apply them …

Judicial Ethics May Decide Whether A Prisoner Can Be Touched As He Is Executed, Mikayla Lewison

SLU Law Journal Online

The community having faith in the judiciary is vital for the U.S. to function as a democracy. Recently, the Court has become seemingly more politicized, even though Americans prefer an apolitical court. In this article, Mikayla Lewison argues that personal interests of the justices on the Court have likely played a role in whether or not prisoners, like John Henry Ramirez, may have a cleric of their choice inside the chamber as they are executed.

The Catholic Church And The Paycheck Protection Program: Assessing Nondiscrimination After Trinity Lutheran And Espinoza, Elizabeth Totzke

Notre Dame Law Review

This Note argues the inclusion of houses of worship and the subsequent dispersal of PPP funds to the Catholic Church was explicitly constitutional. Applying the lens of the Supreme Court’s recently announced nondiscrimination principle, this Note considers the ramifications of the SBA’s official policy and explores the constitutional justification for the SBA’s ad hoc PPP policy. In fact, under the nondiscrimination principle, this Note concludes that the SBA’s policy shift was not just constitutionally permissible, but probably constitutionally required.

The Constitutional Tort System, Noah Smith-Drelich

Indiana Law Journal

Constitutional torts—private lawsuits for constitutional wrongdoing—are the primary means by which violations of the U.S. Constitution are vindicated and deterred. Through damage awards, and occasionally injunctive relief, victims of constitutional violations discourage future misconduct while obtaining redress. However, the collection of laws that governs these actions is a complete muddle, lacking any sort of coherent structure or unifying theory. The result is too much and too little constitutional litigation, generating calls for reform from across the political spectrum along with reverberations that reach from Standing Rock to Flint to Ferguson.

This Article constructs a framework of the constitutional tort system, …

Moral Truth And Constitutional Conservatism, Gerard V. Bradley

Journal Articles

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a melange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage.

The reason for the methodological moral reticence is easy to …

Fields V. Speaker Of Pennsylvania House Of Representatives, Heidi Moore

NYLS Law Review

No abstract provided.

The Religious Freedom Restoration Act, Trinity Lutheran, And Trumpism: Codifying Fiction With Administrative Gaslighting, Robin S. Maril

Northwestern Journal of Law & Social Policy

This article addresses the Trump administration’s consistent misinterpretation and misapplication of legal precedent to support unnecessary religious exemptions that exceed Constitutional mandates and impair the rights of third parties to access federal services and programs. Proponents of this routinized repeal of civil rights protections argue that the Trump administration is merely restoring the correct balance of religious liberties in the federal government. However, the regulations and policies included in this campaign unconstitutionally broaden the already robust religious protections provided by statutes and court decisions and have the effect of dismantling the civil rights infrastructure of the past 50 years.

Despite …

Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine

Scholarly Works

For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, …

Is This A Christian Nation?: Virtual Symposium September 25, 2020, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Role Of Religious Organizations In The System Of Institutes Of Civil Society, F. Rashidov

Review of law sciences

This article discusses the concepts of religion and religious organizations, the role of religious organizations as an institution of civil society in maintaining peace and stability in the context of globalization, their relationship with other organizations, their attitude to religion in a secular state, and the work in the field of Islamic education carried out in The Republic of Uzbekistan also draws attention to existing problems in the field of freedom of religion and conscience, and their solutions

Government Speech Doctrine—Legislator-Led Prayer's Saving Grace, Daniel M. Vitagliano

St. John's Law Review

(Excerpt)

This Note argues that Lund was decided incorrectly in part because the Fourth Circuit failed to analyze the type of speech at issue before assessing the constitutionality of the prayer practice. This Note is composed of four parts. Part I surveys the Supreme Court’s legislative prayer jurisprudence—Marsh and Town of Greece. Part II outlines Lund and Bormuth, and the Fourth and Sixth Circuits’ dissimilar applications of the Supreme Court’s precedent. Part III argues that courts must first classify legislative prayers as either government or private speech before assessing whether a prayer practice violates the Establishment Clause. It further argues …

Free Exercise Standing: Extra-Centrality As Injury In Fact, Brendan T. Beery

St. John's Law Review

(Excerpt)

Part I of this Article surveys standing doctrine generally and tackles the problem of psychic insult—what might fairly, in some cases, be characterized as hurt feelings—as an injury. Part II addresses the special problems of finding concrete and palpable injuries in religion cases, noting that it is more difficult to identify such injuries in Establishment Clause cases than in free exercise cases. When free exercise is viewed as dynamic and kinetic, free exercise injuries are discernible and concrete: they occur when a person is forced to participate in religious undertakings or express beliefs against his or her will, or …

The “Step-Child Of Scholarly Investigation”: Preliminary Observations About The Origins Of Academic Jewish Law Scholarship, David Hollander

Touro Law Review

No abstract provided.

Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson

Washington and Lee Law Review

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

Glenn Beck Bad News For Religious Conservatism, Nathan B. Oman

Nathan B. Oman

No abstract provided.

Doux Commerce, Religion, And The Limits Of Antidiscrimination Law, Nathan B. Oman

Nathan B. Oman

Recent cases involving religious businesses owners who object to providing services for same-sex weddings and resulting lawsuits have generated a vigorous academic and popular debate. That debate centers in part on the proper role of religion in the market. This article develops three theories of the proper relationship between commerce and religion and applies them to these conflicts. The first approach would apply the norms of liberal democratic governments to market actors. The second approach posits that any market outcome is legitimate so long as it results from voluntary contracts. These approaches yield contradictory and indeterminate advice on the conflicts …

The Forum Of Conscience: Applying Standards Under The Free Exercise Clause, Paul Marcus

Paul Marcus

The 1973 Supreme Court decision in Wisconsin v. Yoder reenforced and amplified the Court's earlier holding in Sherbert v. Verner that the free exercise clause of the first amendment requires the state to render substantial deference to religiously motivated behavior in the application of its laws and regulatory schemes. In this article, Mr. Marcus traces the evolving standards of free exercise doctrine and observes that the "balancing test" which has resulted from that evolution requires still further refinement to give religious freedom its full constitutional due. The author then illustrates how the new standards of free exercise might be applied …

Establishment Of Religion Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Christians And Pagans, Abner S. Greene

Journal of Catholic Legal Studies

(Excerpt)

In this response paper, I will offer four thoughts. First, I’m not sure the contemporary picture is best described as pagans vs. Christians. Second, I question the subtle move throughout the book from a generative/creative understanding of God to seeing God as normative, as supervening in human affairs regarding right and wrong conduct. Third, I push back on the notion that theistic belief (or, perhaps, the very existence of God) is necessary to ground meaning and value. Fourth, I discuss some modern-day U.S. constitutional issues that Smith discusses as examples of pagans persecuting Christians: (a) state-sponsored religious symbols, (b) …

The Thinness Of Catholic Legal Education, A Review Of Robert J. Kaczorowski, Fordham University Law School: A History, John M. Breen, Lee J. Strang

University of St. Thomas Law Journal

No abstract provided.

When Academic Freedom Collides With Religious Liberty Of Religious Universities, Tanner Bean, Robin Fretwell Wilson

University of St. Thomas Law Journal

No abstract provided.

The Sad Spiritual State Of American Colleges And Universities, Carol M. Swain

University of St. Thomas Law Journal

No abstract provided.

Mary And Martha: Putting First Things First In A College Education, Michael A. Scaperlanda

University of St. Thomas Law Journal

No abstract provided.

A Catholic University Approach To Campus Speech: Using Constitutional Academic Freedom To Hold The Tension Of Free Speech, Inclusive Diversity, And University Identity, Sara E. Gross Methner

University of St. Thomas Law Journal

No abstract provided.

The Religious Beliefs, Practices, And Experiences Of Law Professors, James Lindgren

University of St. Thomas Law Journal

No abstract provided.

A Catholic Perspective On Law School Diversity Requirements, Teresa Stanton Collett

University of St. Thomas Law Journal

No abstract provided.